Kanad Syal v. Pardeep Kumar Aggarwal

this Court in Banke Ram Versus Smt. Sarasti Devi, AIR 1977 P&H 158 with specific reference to the referral order, as also the numerous decisions which were considered therein and the conclusion contained in it, to contend that the impugned judgments are liable to be set aside. The relevant observations on which reliance has been placed are extracted below:- “Though all the provisions of the Code of Civil Procedure are not applicable to the proceedings in the applications for eviction under the Act, but the principles which are the basis C.R.No.7296 of 2009 -3- .... and foundation of the administration of justice as the one incorporated in O.VI, R.2 of the Code of Civil Procedure, will be undoubtedly applicable to those proceedings also. The purpose in following the procedure of framing of issues in eviction applications is also intended to pin-point the parties to the matter in controversy between them so that none of the parties may be taken by surprise and subsequently none of them may allege that he was in any way prejudiced.

The conditions laid down in sub-cls. (b) and (c ) are statutory conditions inasmuch as they are provided by the statute, but to fulfil those conditions, the landlord must lead evidence to prove the facts constituting those conditions. If the landlord is to satisfy those essential conditions, he must lay foundation regarding the same in his pleadings so that the tenant-respondent is in a position to rebut the same and proper issues are also framed. A landlord applying for the eviction of his tenant under S. 13(3) (2) (a) on the ground contained in sub-paragraphs (b) and (c), i.e., for his own use and occupation, has to specifically plead in his application the contents of sub-paragraphs (b) and (c) aforesaid, which put a rider on the right of the landlord to get the eviction of his tenant from the premises even for his own use unless he succeeds in proving that he was not in occupation of another residential building in the same building after the commencement of the Act without any sufficient cause.” C.R.No.7296 of 2009 -4- .... Learned counsel for the petitioner also sought to draw strength from paragraphs 3, 4, 6, 7 and 12 of the aforesaid judgment.

The same are also extracted below:- “3. The earliest decision having bearing on the matter in controversy is by Bishan Narain,J., in Civil Revn. No.372 of 1956 (Lakhi Ram v. Piare Lal), decided on April 20,1958 (Punj), wherein the application by the landlord for the eviction of the tenant on the ground of bona fide need for personal occupation was dismissed by both the Rent Controller and the Appellate Authority. The landlord did not make any allegation, relating to sub-cls. (b) and(c) of the aforesaid provision, in his application. The tenant also did not make any reference regarding the same in his reply. No issue regarding the same was framed by the Rent Controller. One of the contentions of the learned counsel for the landlord-petitioner in the revision petition was that the eviction application had been dismissed on a ground regarding which no issue had been framed. This contention was upheld by Bishan Narain,J. and it was held that no amount of evidence could be looked into upon a plea which was never put forward.

It was further held that it will be extremely unfair in the absence of a specific issue to non-suit the landlord. Thus, the revision petition was accepted and the case was remanded back after framing new issues with reference to sub-cls. (b) and (c ) of the Act. C.R.No.7296 of 2009 -5- .... In Krishan Lal Seth v. Pritam Kumari, (1961) 63 Pun LR 865, the Division Bench comprising of Mehar Singh and Mahajan, JJ., after taking into consideration the above- mentioned decision rendered by Bishan Narain,J., came to the conclusion and held that it was not necessary to allege and plead anything referred to in sub-cls. (b) and ( c) of the aforesaid provision. The ratio of the decision in Krishan Lal Seth's case (supra) is the sole basis of one view of the question involved and is reproduced below in extenso: “The learned counsel has drawn our attention to the observation of the learned Judges that `the scope of enquiry by the judicial and quasi-judicial tribunals is normally confined to the disputes set out by the contesting parties in their respective pleadings; in other words, the rights and liabilities of the parties as they exist on the date of the initiation of the proceedings alone fall within the scope of the investigation of which the tribunal is seized and it is generally incompetent for a tribunal to adjudicate upon any controversial matter which does not find place in the pleadings of the parties.' As a general statement of law this is unexceptional.

However, the ground for eviction under S.13(3) (a) (i) from a residential building is the requirement by the landlord of the building for his own occupation and the sub- clause adds two statutory conditions to this ground before it can be successfully urged to obtain eviction. Such statutory C.R.No.7296 of 2009 -6- .... conditions obviously must be established by the landlord, but as the conditions are provided by the statute, it is not necessary to repeat them in the pleadings. The object of requiring the parties to be confined to their pleadings is to avoid surprise to the opposite party, and in regard to a prayer for the eviction on the ground of requirement of residential building by a landlord for his own occupation, there can possibly be no surprise if paras (b) and (c) of sub-cl. (i) of cl. (a) of S.13(3) are not repeated in the application, for such conditions are provided by the statute and are available for the knowledge of the tenant from the perusal of the statute.

Thus it was not necessary for the landlord to restate in the application those statutory conditions and for her omission to refer to those conditions her application could not possibly be dismissed. There could not be any ground for surprise to the tenant and there is no justification for dismissal of the application for the mere omission to reproduce the statutory conditions in the application. This argument is without substance and is discarded.” The decision in Krishan Lal Seth's case (supra) was followed by Pandit,J., (as he then was) in Dev Raj v. Tilak Raj Dharam Pal, 1973 Cur LJ 557 (Punj) and the revision petition of the tenant was dismissed though there was no averment in the eviction application regarding sub-cls. (b) and ( c) of S.13 of the Act. The learned Judge without any discussion, relying upon the C.R.No.7296 of 2009 -7- .... above-mentioned Division Bench decision only held as under:- “Under the law, it was not necessary to mention these things in the application.” Tewatia,J. (as he then was) also relied upon the ratio of the above-mentioned decision by the Division Bench while deciding Civil Revn. No.529 of 1973 (Gurdit Singh v. Shankar Lal Misra), decided on July 15,1975 (Punj).

This matter also came up for consideration before Himachal Bench of the Delhi High Court in H.N.Bhasin v. Chmba Mall, 1970 Ren. CR 840 (Delhi) in which Ansari,J., expressed doubt if in the absence of specific pleadings by the landlord and in the absence of specific issue on the point the evidence of the landlord was at all admissible. It was held,- “It is doubtful whether in the absence of specific pleadings by the respondent and in the absence of a specific issue on the point the evidence of the respondent was at all admissible. No doubt the petitioner did not object to this portion of the evidence of the respondent. But under the circumstances, it cannot be said that this portion of the evidence had gone unchallenged by the petitioner. In the absence of pleadings and also in the absence of a specific issue on the point the petitioner could not have expected the respondent to lead evidence on this point, and he could not be expected to challenge such evidence either by cross-examination or by leading independent C.R.No.7296 of 2009 -8- .... evidence.

Reliance was placed by the learned counsel for the C.R.No.7296 of 2009 -9- .... respondent on the decision of Goyal,J., in Civil Revision No.1116 of 1976 (Amar Nath v. Sudarshan Singh) decided on November 2,1976 (Punj). In that case, the learned Judge noticed some of the abovementioned decisions in favour of the proposition that it was essential to plead the ingredients of sub- cls. (b) and ( c),but then posed the question as to whether the non-pleading of the fact that the landlord was not occupying any other residential area in the urban area concerned was fatal to the cause of the respondent, landlord. According to the learned Judge, every variance between pleading and proof is not necessarily fatal to the suit or defence and the test is to see whether the party aggrieved has really been taken by surprise or is prejudiced by the action of the opposite party. A perusal of the judgment shows that the learned Judge did not express disagreement with the proposition that it was necessary to plead ingredients of sub-cls. (b) and ( c) and decided the matter on the particular facts of that very case.

Thus it is clear from the above discussion that the predominant view of this Court has been that it is imperative for the landlord to plead the ingredients of sub-cls. (b) and ( c) of S.13(3) (a).Even after the decision of the Division Bench of this Court in Krishan Lal Seth's case (1961-63) Pun LR 865) to the contrary, Mahajan,J., (as he then was) one of the Judges on this Division Bench expressed a contrary view in Darshan C.R.No.7296 of 2009 -10- .... Singh's case (1974 Ren CR 99) (Punj) (supra). It is well established and salutary principle of law that in any civil proceedings, it is essential for a party to plead the ingredients of any facts in the pleading on which he wants to rely and in proof of which he may produce evidence. O.VI, R.2, Code of Civil Procedure, specifically provides for the same. It is reproduced below:- “Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall when necessary, be divided into paragraphs, numbered consecutively.

In the present case, we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of sub-cls. (b) and ( c) and not the question that if in a particular case these ingredients are not pleaded, but the parties have led evidence with regard to C.R.No.7296 of 2009 -12- .... them, what will be the effect? In any given case, where facts have not been averred in the pleading, a number of questions can arise as to whether proper evidence has been adduced by the landlord regarding those facts which do not find place in the pleadings and secondly whether such evidence will be admissible or not and lastly, whether the tenant was taken by surprise or not and had led evidence with full knowledge of the requisite contentions raised by the landlord and whether the tenant has in those circumstances been prejudiced or not, the Court be required to give full consideration to the contentions raised by the respective parties and the facts and circumstances of each case before giving its decision in favour of the landlord or the tenant, but the decisions of the High Courts or the Supreme Court, in this regard, cannot be of any avail to detract from the validity of the proposition that it is necessary for the landlord to make averments regarding the ingredients of sub- cls.

That the petitioner requires the tenancy premises i.e. Shop No.171/3,Near Vijay Rattan Chowk, Ambala Cantt. bona fide for his own use and occupation for starting his own business bona fide. The petitioner was in the employment of ANDHRA BANK from where the petitioner has now got voluntarily retired due to the compelling circumstances w.e.f. 29.10.1997 and at present, the petitioner has no other shop in the area of Ambala Sadar, Ambala Cantt. for starting his own business. The petitioner at present has started a `Sarafa' business as a tenant in Hanuman Market, ambala Cantt. under Shri Anirudh Bindlish in Shop No. 4567-portion. The present shop has been taken on rent by the petitioner from Shri Anirudh Bindlish temporarily for a short period, which is situated in a Gali connecting Sarafa Bazar and Subzi Mandi. The petitioner requires the shop in question for his own use and occupation for starting his new business and the petitioner shall do his C.R.No.7296 of 2009 -15- .... Sarafa business in the shop in question after getting the same vacated from the respondent. ..... Paragraph 2 of the written statement.

2. That para No.2 of the petition is incorrect. The petitioner does not require the shop in question for his bona fide use, need and occupation, as alleged. It is not within the knowledge of the answering respondent whether the petitioner was in the employment of Andhra Bank and he got voluntary retirement. As a matter of fact, the petitioner is creating one or the other ground falsely for the eviction of the respondent. As a matter of fact, the petitioner neither requires the premises in question for his personal bona fide use, need and occupation nor he intended to start his business, as alleged. Anirudh Bindlish is a friend of the petitioner and in so far as knowledge of the respondent goes, he is a relative of the petitioner also. The alleged act of taking on rent the shop from Anirudh Bindlish is nothing but a sham transaction. The petitioner does not require the shop in question for starting any business, as alleged.

A false ground is being created just to get the shop in question vacated otherwise, the petitioner does not require the shop in question for his personal bona fide use, need and occupation.” A reading of the above extracted pleadings of the parties shows that the tenant had given a detailed reply to the averment of the personal C.R.No.7296 of 2009 -16- .... necessity set up by the landlord. Concededly, there was no issue framed on the basis of these pleadings. But for the reason that there were specific pleadings to this effect which were adequately answered by the tenant with her objection and also for the reason that the landlord was cross-examined by the tenant on this aspect of the controversy, it does not lie in the mouth of the tenant or her legal representative now to question the propriety of the eviction order on the ground that no issue had been struck and, therefore, she or he had been taken by surprise.

The observations of the Full Bench and the paragraphs of the judgment in Banke Ram's case (supra), relied upon by the learned counsel for the petitioner and which have been extracted above, can be understood if the facts of that case are to be considered. It is evident that in the reported case, the landlord had not specifically pleaded the ground of his personal necessity to seek eviction of the tenant and no issue was struck in that behalf and, therefore, the observations flowed as a natural and logical corollary to the legal proposition that once there is no pleading, there can be no issue and no evidence in support thereof and the Full Bench concluded, thus, only when it proceeded on the aforesaid premise. But, in the instant case, there is specific pleading to which the tenant had responded and had also cross- examined the landlord in an attempt to shatter his plea. The tenant was, thus, not taken by surprise on the ground of bona fide need of the landlord.

Rather, she or her legal representative was more than alive to the situation and, therefore, cannot raise a plea that prejudice has been caused to them on this count. C.R.No.7296 of 2009 -17- .... It is, therefore, essential for the Court to examine these aspects before concluding as to whether a person has been prejudiced or taken by surprise by not pleading a particular fact, but if the facts are specifically pleaded, responded to and in evidence the witnesses cross-examined, then it can safely be said that the parties to the dispute are conscious of the issues that are germane to the controversy and thus, cannot plead that since no issue was struck on a particular aspect, the entire proceedings are vitiated. A Division Bench of this Court in Ajit Singh Versus Joint Development Commissioner, Punjab (supra) observed in paragraph 9 of the judgment as under:- “9. There can be no quarrel with the proposition set down in Nant Singh's case (supra) that the Collector was required to determine the question of title after framing issues and recording evidence.

However, mere non-framing of issues would not render the order void. The parties were conscious of the lis pending between them. Both parties led evidence for and against the respective contentions and were, therefore, alive to the controversy. The non-framing of issues, in the facts and circumstances of the present case, cannot be invoked to set aside the impugned orders.” Further, a learned Single Judge of this Court in Tika & Ors. Versus Ram Chander & Ors. (supra) laid down that

once the parties go to trial being alive to the controversy between them even then, in the absence of a specific issue having been framed, the court is not precluded from C.R.No.7296 of 2009 -18- .... recording a finding of fact on that controversy provided that the parties have pleaded the case and have led their evidence.

The evidence on record also conclusively establishes the need of the landlord to get the demised premises vacated.

In Prativa Devi Versus T.V.Krishnan, (1996) 5 S.C.C. 353, a three-Judges Bench of the Apex Court observed that the landlord is the best judge of his residential requirement; that he has a complete freedom in the matter; that it is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.” In Sarla Ahuja Versus United India Insurance Co. Ltd., (1998) 8 S.C.C. 119, the Supreme Court held as under:-

The Rent Controller should not proceed on the assumption that the landlord's requirement is not bona fide. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bona fide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.

In Shiv Sarup Gupta Versus Dr.Mahesh Chand Gupta, (1999) 6 S.C.C. 222, the Apex Court, while referring to a number of earlier decisions C.R.No.7296 of 2009 -19- .... including those in Prativa Devi's case (supra) and Sarla Ahuja' case (supra) , held that “where on the facts substantiated by the landlord the need to occupy the tenanted premises can be said to be natural, real, sincere and honest, the need is bona fide.” Again, in Ragavendra Kumar Versus Firm Prem Machinery & Co., (2000) 1 S.C.C. 679, it was laid down that “ it is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.” In Atma S.Berar Versus Mukthiar Singh, 2003(1) Rent Control Reporter 42 (S.C.), a similar view was expressed by the Supreme Court. Having regard to the above discussion, I do not find any merit in the instant petition and the same is dismissed accordingly. September 8,2010 “SCM” ( Mahesh Grover ) Judge