JUDGMENT : H.L. Agrawal, C.J. - By this writ application, the Petitioner, a tenant under opposite party No. 1, has challenged the correctness of the judgment and order of the Chief Judicial Magistrate, Cuttack (opp. party No. 3) in Annexure 3 passed on appeal. 2. The main question raised for our consideration is as to whether the Courts could allow evidence on the question of personal necessity when no such ground was made out in the application for eviction. 3. Opposite party No. 1 instituted a case against the petition before the House Rent Controller, Cuttack for his eviction from the premises, a wooden cabin in which the Petitioner is running a betel shop and tea stall. The cabin which is situated at Nayasarak, a main road in the town of Cuttack, appertains to Holding No. 78 in Ward No. 11 of the Cuttack Municipality. The tenancy began in February, 1980 on an agreed rent of Rs. 2001 per month. 4. Several grounds for eviction of the Petitioner, such as, wilful default in payment of the rent, causing .damage to the cabin and demolition of the premises for the purpose of construction of a masonry structure over the same, were urged in the eviction application. 5. The Petitioner challenged the correctness of the above grounds and pleaded that the action of the landlady was mala fide as he had refused to raise the rate of rent. 6. The application was dismissed by the Controller but on appeal filed before the appellate authority (opp. party No. 3), the order of eviction has been passed on the sole ground that the landlady required the premises for her personal necessity. 7. The argument advanced on behalf of the Petitioner in this Court is that no case of personal necessity in clear terms was put forth in the application for eviction and therefore that should not have been allowed. 8. 7. The argument advanced on behalf of the Petitioner in this Court is that no case of personal necessity in clear terms was put forth in the application for eviction and therefore that should not have been allowed. 8. Sub-section (4) of Section 7 of the Orissa House Rent Control Act, 1967 (for short, "the Act") contains the relevant provision in these words: (4) The landlord may, subject to the provisions of this Act, apply to the Controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him. In this regard, opposite party No. 1 has made the following allegation in the application for eviction a copy of which has been filed as Annexure-1 to the writ applications: ... The landlord wants to demolish the said cabin and construct masonry structures over the same. For that purpose she has obtained permission from the G.C.I.T. and Municipality and will commence construction as soon as possible. Hence, the tenant be evicted from the said premises. 9. There is no whisper in the above statement about the necessity of the premises by the landlady either for her own use or for use by any member of her family, much less, on any account. In support of her case, the landlady examined herself as p.w. 1 and made the following statement on the question of personal necessity: As I am staying on rent in another house which belongs to Shanti Modi. I 'Want to evict the opposite party from the case house and win construct a new house for my residential purpose. In her cross-examination on this point, she stated as follows: 10. I am staying as a tenant since last 20 years in the house of Shanti Modi. Shanti Modi, the landlady of mine, is my daughter. She is not granting receipt towards the rent. I am paying her Rs. 1000/- (Rupees one thousand) as monthly rent. As already said above, no such case was made out in the application for eviction although the appellate Court on the basis of this evidence has passed the order of eviction. 10. She is not granting receipt towards the rent. I am paying her Rs. 1000/- (Rupees one thousand) as monthly rent. As already said above, no such case was made out in the application for eviction although the appellate Court on the basis of this evidence has passed the order of eviction. 10. It is apparent according to the evidence of the landlady that the premises in question, i.e., the wooden cabin as such, is not required by her, The requirement is of a house to be built after demolition of the cabin. This situation gives rise to the question as to whether this would constitute a requirement of the premises in question by the landlady even if a case had been made out in that regard. A situation, somewhat similar to the case in hand, arose for consideration in the case of T. Bhagirao Vs. K. Panduranga Subudhi and Others. There, the grounds of personal necessity urged on behalf of the landlord was for the purpose of his profession and also that the same was bona fide required by him for remodelling to make it suitable for the aforesaid purpose, It was held by this Court that the requirement by the landlord is a pre-condition. Mere wish to demolish the house "without actually requiring it" for one of the uses of the nature mentioned in, Sub-section (4) of Section 7, as was found by the appellate authority, will not attract this provision to justify a decree for eviction. The decree for eviction on the ground of remodelling alone was thus held to be unsustainable in law and beyond the scope of Section 7 (4) of the Act. 11. Strong reliance was placed on behalf of opposite party No. 1 on the case of D. Chaturbhuj Jain Bhansali and Another Vs. Bijoy Chandra Bakshi and Others. This case decided a different question, namely, that if, the landlord once stated that he required the premises for his personal occupation, then detailed particular of the requirement were not necessary to be stated. It is not a case where the basic ground itself was absent which was allowed to be supplied in course of the evidence. It was then submitted that the nature of the proceeding being summary, the law of pleading would have no application. I do not find any substance in this submission. It is not a case where the basic ground itself was absent which was allowed to be supplied in course of the evidence. It was then submitted that the nature of the proceeding being summary, the law of pleading would have no application. I do not find any substance in this submission. In the absence of the ground for eviction being pleaded, how can the tenant set up his defence and what could be the scope of enquiry by the Controller? 12. On behalf of the Petitioner, reliance was also placed on the case of Jammula Narasimhulu v. Kotini Sitaram and Anr. 31 (1965) C.L.T. 337, where an observation has been made that the need of the landlord must be the need at the time of the application for eviction and it cannot refer to any possible use to which the building might be put at a future date. 13. 1 may refer to a Bench decision of the Patna High Court in the case of Haji Abdul Ghaffar v. Sawal Ram and Anr. 1969 B. L.J.R. 164. While dealing with the provisions of the Bihar Buildings (Lease, Rent and. Eviction) Act, 1947 - where also there is no provision for eviction on the ground of requirement of the premises for reconstruction - the Court held that the expression "personal necessity" cannot be interpreted in the wider sense to include reconstruction of the premises. In this decision, the Court also noticed the provisions of various other. State Acts, such as, (1) Madras Buildings (Lease and Rent Control) Act, 1960, (2) Delhi and Ajmer-Merwara Rent Control Act, 1947, (3) Delhi and Ajmer Rent Control Act, 1952, (4) East Punjnb Urban Rent Restriction Act, 1959 and, (5) Rajasthan Premises Act, 1960 to show that all the above State laws clearly provided for eviction of the tenant on the ground of construction, reconstruction, demolition, repairs etc. of the building and refused to interpret the word "occupation" in the Bihar Act to include construction or reconstruction of any building. of the building and refused to interpret the word "occupation" in the Bihar Act to include construction or reconstruction of any building. Following the principle laid down in this well considered authority and examining the scheme of the Orissa Act which is in pari materia with the Bihar Act and the decisions of this Court, 1 would hold that a landlord cannot be allowed to evict a tenant from his premises merely on the ground of construction reconstruction, demolition or remodelling of the house as that is no covered under any of the provisions of Section 7 of the Orissa Act. 14. From the above discussions, it becomes apparent that the eviction application must fail on the main ground, i.e., no foundation for eviction on the ground of bona fide personal necessity having been laid in the same for eviction. The appellate Court thus committed an error of law in entering into this question and examining the evidence in support of the landlady's case and recording a finding. The other possible view against the landlady's case may be that she did not require the premises in question as it existed, in order to satisfy her requirement it had to be reconstructed. Then again, the requirement urged in the application for eviction was the demolition of the cabin as such for putting up a masonry structure a ground which is not available to a landlord under the Orissa Act. It is not even the case of the nature before the Full Bench in H. Mohammad Sikandar v. Badrunissa Bibi and ors., where the landlord required only the site of the house bona fide after dismantling the house. 15. For all these reasons, the writ application must succeed. It is accordingly allowed and as a result, the appellate order passed by opposite party No. 3 in Annexure-3 is hereby quashed. In the circumstances of the case, however, I shall make no order as to costs. D.P. Mohapatra, J. 16. I agree. Final Result : Allowed