Anand Saroop Gupta vs Zalim Singh
1990 Latest Caselaw 562 Del

JUDGMENT

S.N. Sapra, J.

(1) This Regular Second Appeal, is directed against the judgment dated 20/02/1989, by which, the first Appellate Court (learned Additional Senior Sub Judge, Delhi), rejected the plaint, under Order 7 Rule It of Civil Procedure Code.

(2) In the appeal, appellant, has raised the following substantial questions of law : "1. Whether the plaint read as a whole did not disclose cause of action.2. Whether a plea that the plaint did not disclose cause of action because it was not asserted that the premises were let forresidential purposes to Smt. Ganga Devi, could be raised for the firsttime in appeal, when no such plea was raised in the written statement or till decision of the suit by the Trial Court.3. Whether from the pleadings and evidence it is apparent that the respondent knew that the above mentioned plea that the premises were let for residential purposes was involved in the trial,and in appeal no grievance about it could be raised."

(3) While admitting the appeal, Mahinder Narain, J. observed thatthe averments, as appear from the judgment of the Courts below, were sufficient to establish, that it was pleaded, that the deceased Ganga Devi, had been residing in the permises with her son Zaiim Singh. Zaiim Singh was working asa fireman and was not dependent and, therefore, he was not entitled to succeeds tenant, in accordance with the statutory provisions.

(4) Briefly stated, the facts, giving rise to the appeal, are that on 4/03/1985, appellant (plaintiff in suit) filed a suit for possession againstrespondent, on the ground, that Smt. Ganga Devi, resident of 4896, LadduGhati, Paharganj, New Delhi, was tenant of appellant, in respect of one room and common verandah, on the ground floor of the house, on a monthly rent of Rs. 10.00. The contractual tenancy of Smt. Ganga Devi, had been terminated by a notice dated 5/01/1984 After the termination of tenancy, Smt.Ganga Devi continued in possession, by virtue of the protection, as, afforded by the Delhi Rent Control Act, 1958, hereinafter called the Act.

(5) Smt, Ganga Devi, died on 2/03/1984, leaving behind only oneheir, i.e. her son, namely, Zaiim Singh, respondent berein. In the plaint, it was also alleged that at the time of the death of hi; mother, respondent was not residing with her and, he was not financially dependent upon his mother,since, be was leading fireman, employed with Delhi Fire Service, getting handsome salary and had been allotted a quarter no. A-3, at the Fire ServiceStation, Moti Nagar, Delhi. In that quarter, respondent has been residing with is family members.

(6) In his written statement, respondent alleged that the suit was notmaintainable, -as the same has not been properly valued and also, that be was a tenant after the death of his mother, and, assuch, the eviction proceedings could be initiated only in the court of Rent Controller, Delhi, under the Delhi Rent Control Act. Respondent further alleged that he was the sole legal Heir of his mother Smt. Ganga Devi. The defense on merits, of respondent was,that the tenancy of Smt. Ganga Devi had not been terminated by any notice,that respondent was financially dependent on her mother and he was residing with her. However, it was not denied that he was employed with Delhi Fire Service and had been allotted a quarter, but it was alleged that, hea nd bischildren, were living in the suit premises.

(7) In replication, appellant affirmed the averments, as made in the plaint.

(8) On the pleadings of the parties, following issues were framed, by the learned Sub Judge : 1. Whether the suit of the plaintiff is not maintainable under Section 50 of the Rent Control Act ? OPD2. Whether r he suit has been properly valued for the purposeof court fee ? OPD3. Whether the plaintiff is entitled for the relief of the possession as prayed ?

(9) Both the parties led evidence, before the trial court.

(10) In his judgment, the learned trial court, held that suit was not barred under Section 50 of the Act, and, as such, was mintainable. Issueno. 2 was also decided in favor of appellant. The trial court, decreed the suit of plaintiff, vide judgment dated 18/04/1987.

(11) Aggrieved by the judgment and decree of the trial court, respondent filed Regular Civil Appeal no. 99 of 1987, before the Senior Sub Judge,Delhi. In appeal, before the First Appellate Court, the only submission, made on behalf of the present respondent, was that plaintiff, at nowhere alleged in the plaint that, the premises had been let out to Smt. Ganga Devi, for residential purposes only. As such, plaint did not disclose any cause of action. The First Appellate Court accepted the contention of the respondent and held That plaintiff bad no cause of action, to file the suit for .possession. As a result,plaint was rejected under Order 7, Rule 11 C.P.C.

(12) Various contentions have been urged before me, by Mr. Ishwar Sahai, learned counsel for appellant.

(13) It has been urged by Mr. Ishwar Sahai that ail the necessaryingredients, constituting the cause of action, were ' stated in the plaint. It is not necessary to state specifically, in the plaint, that the premises were Let out for residential purposes, to claim the. relief of possession. According toMr. Sahai, the only requirement of law, as held by their Lordships of Supreme Court in Smt. Gian Devi Anand v. Jeevan Kumar and others. , is that the premises should be residential and the inheritance Would be by specified heirs, as mentioned in Section 2(L) of the Act. A close Reading of the plaint, will show that the premises were residential premises, and Smt.Ganga Devi, deceased tenant, was residing in the premises. Further, respondent, the only heir of his mother, was not entitled to inherit the tenancy rights,as, he was not living with his mother, at the time of her death.

(14) The next contention, urged by Mr.lshwer Sahai is that, omission to mention in plaint, that the premises were let out for residential purposes,has no adverse affect, as no prejudice was caused to respondent, because,the case of respondent, in his written statement, was that his deceased mother resided with her husband, the wife of respondent and his three children in oneroom. Respondent also claimed inheritance of tenancy rights, on the ground,that he was residing with his mother and was financially dependent upon her.

(15) It was also been urged that in the written statement, respondent did not raise any plea that the plaint did not disclose any cause of action, on the ground, that plaintiff failed to mention that the permises had been let out for residential purpose. As, no plea was raised by respondent, so, no issue was framed on that. Mr. Ishwar Sahai also urges that the nature of the tenanted premises is such, that the same could only be for residential purposes as,the tenancy premises consisted of one room and common verandah, which is within a huge residential building.

(16) Reliance has been placed on the judgments in Shri Gurdial Nagdev v. Smt. Devi Bal, 1079(1) Rent Control Reporter, 119, Rup Chand v. Shanti Devi; Arvind Berry v. Rear Admiral A.P.S. Bindra, and Smt. Gian Devi Anand v. Jeevan Kumar and Others .

(17) Mr. C.P. Wig, learned counsel for respondent, has urged that in order to succeed, it was mandatory for the appellant to plead that the premises were let out for residential purposes.. Section 2(L) of the Act, only defines the word 'tenant', and, as such, it does not override the provisions of Section 14(1)(e) of the Act. He has-placed reliance upon the judgment in Edwin Brave v. Hari Chand 21 1982 Delhi Law Times 209.

(18) In Shri Gurdial Nagdev (supra), Mr. Justice M.L. Jain Observed that failure to plead the ingredients, in a petition for eviction, under Section 14(l)(e) of the Ace, did not necessarily result in dismissal of the petition,if parties knew, the points in controversy and, none was taken by surprise.The tenant was not permitted to raise technical objections, in revision. It washeld; "I have looked into the application. The landlady Mentioned that the premises let out to the respondent are residential and are being used by him for residential purposes. That in other words clearly means that the premises were let out for residential purpose.Though, it is not mentioned that she has no other accommodation but the very fact that the present premises are not sufficient for all the members of the family implies that other accommodation is really not available. There has thus been a sufficient compliance of the requirements of Section 14(l)(e). The tenant had sufficient notice of the case set up by the landlady and both the parties knew well the points of controversy between them and no one was taken bysurprise. It will be an improper exercise of discretion if he were now permitted to raise this technical objection. Moreover, failure to plead the ingredients does not .necessarily result in dismissal of the petition. I, therefore, 'find no force in this contention. It was also suggested by the petitioner that the premises were let out for commercial purposes which is, it was said, borne out by the allegation in f e notice that the residential premises are being used for commercial purposes. But this is belied by the receipt given by the tenant in which he has described the premises as residential. Even in his affidavit he has admitted that the premises were let out for purposes of residence and business both and did not say that they were let out for business purposes only."

(19) In Rup Chand, (supra) one of the questions, which arose fordecision, was, whether the landlady mentioned all the necessary ingredients inher. petition, for eviction, filed under Section 14(l)(a) and (h) of the Act, and that the plea, with regard to the same cause of action, could be raised, for the first time, in the second appeal. Ms. Justice Leila Seth, after taking into consideration the various judgments, held : "INMr. Kundan Lal Mehta and Others v. Smt. Parkashwati, 1980(2) Rcj 551, Mr. Justice Sultan Singh has noted that if all the ingredients constituting a cause of action within the meaning of clause (e) of Section 14(1) are. not pleaded and proved the landlords not entitled to an order of eviction. It is also well known that no evidence can be looked at on a plea which was never raised in the pleadings. But in paragraph 9 of the said judgment, the learned Judge has noted "It is correct that the ingredients 1 to 4 required to be pleaded are not pleaded in the eviction application. No objection was taken by the appellants tenants in their written statement that the eviction petition does not disclose any cause of action. it was also never argued before the Controller and the Rent ControlTribunal. When evidence was being led before the Controller, it appears that no objection was raised against the recording of the evidence with regard to whether the premises were. let out only for residence or for both residence and commercial purpose in view - of the written statement of the tenant. The tenant also filed an application before the Tribunal saying that the landlord had reasonably suitable accommodation and sought permission to lead evidence. Atthe instance of the tenant himself the Tribunal determined the question whether the landlady has any other reasonable suitableaccommodation. Should the landlady be non-suited now for not pleading these two material ingredients under section 14(l)(e) of theAct". The learned Judge referred to the case of Abdul Hamid v. Nur Mohammad (supra) Banke Ram v. Smit. Sarasvati Devi (supra) and Onkar Nath v. Ved Vyas, 1978(2) R.C.J. 158 and observed that the view of this Court in Hans Raj Dawar v. Shyam Kishore, the1977(2) R.C.J. 253, is that "inadequacy of the pleadings, if any, is, not fatal" if no prejudice has been caused to the parties. The learned Judge also felt that since the party knew the points of controversy and was not taken by surprise, no prejudice was caused to him. the tenant could not be allowed to raise the plea for the first time in second appeal. He also observed that if the objection had been taken in the written statement the landlady could have cured thedefect. She is now taken by surprise in the second appeal. As the objection had not been taken at the first instance and evidence had been recorded without any prejudice, on facts, which were notpleaded, the objection could not be raised. The objection that the plaint does not disclose any cause of action must be taken at earliest and the Court on examination, if it finds the objection valid, may reject the plaint under Order Vii Rule 11, Civil Procedure Code.However, the Court can before rejecting the plaint allow the same to be amended if an amendment is applied for."

(20) In Arvind Berry, (supra) Mr. Justice Sultan Singh held : "LEARNED counsel for the appellant further argues that The purpose of letting the suit premises was not pleaded. The evidence of the landlord was recorded without any plea. He says that though documentary evidence in the form of Ext. AW. 1/10 wherein tenant admits that premises will be used for residence is on the record,but the same cannot be looked into. According to him, it is well established principles of law that no part of evidence can be looked into on a plea which was never raised. The principle is no doubttrue, but the facts of each case have to be considered. It has to be seen whether any prejudice was caused to a party in case of failure of proper pleadings. In Nagubai Ammal v. B. Shama Rao, , it has been observed that evidence led on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. It has been further observed that such a rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issues has been framed thereon and adduce evidence relatingthereto. In the instant case, the appellant-tenant himself placed on record the letter Ext. A.W. 1/10 dt. 15/01/1976 showing that the premises were let to him for use as residence. He was also aware of the ground of eviction under Section 14(l)(e) of theAct.In the preset case, the appellant and the respondent knew all the pleas in dispute to be proved. It seems to me that if a plea is not specifically made and it is known by implication to the parties,the mere fact that the plea was not specifically taken in the pleadings would not necessarily disentitle the party, if it is satisfactorily proved by evidence and no prejudice was caused.In the instant case, the appellant-tenant did not plead that the eviction application did not disclose any cause of action. The evidence was led without any objection regarding absence of plea.The compromise was affected and it was submitted by him that on the basis of evidence on record and otherwise, a decree against him under Section 14(l)(e) of the Act be passed. As already stated,there is sufficient material on record to substantiate all the ingredients required to be proved for an order of eviction under Section 14(l)(e) of the Act. Thus, it cannot be said that failure to plead all the ingredients of Section 14(l)(e) of the Act in the present case resulted in any prejudice to the appellant and as such eviction order cannot be set aside and cannot be held unexecutable. Theplea of non-disclosure of cause of action within the meaning of Order 7 Rule 11 of the Civil Procedure Code, ought to have been raised at the earliest. If it had not been raised, it is deemed to have been waived. In the instant case, no such plea was ever made.Had a plea been raised, the respondent would have taken steps to amend the petition. He is now in Second Appeal taken by surprise.A party cannot be allowed to raise such a plea in Second Appealer Revision at the time -of execution after about 7 years of the institution of the eviction case, specially where no prejudice has been caused to him."

(21) In Smt. GianDevi Anand (supra), their Lordships of Supreme Court observed: "THE amendment to the definition of 'tenant' with retrospective effect introduced by the Delhi Rent Control Amendment Act(Act 18 of 1976) to give personal protection and personal right of continuing in possession to the heirs of the deceased statutory tenant in respect of residential premises only and not with regard to the heirs of the 'so-called statutory tenant in respect .of commercial premises does not imply that those heirs do not enjoy any protection under the Act. Section 2(l)(iii) of the Act does not create any additional or special right in favor of the heirs of the so-called statutory tenant on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential premises. The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal Position of the tenant, unless there are contrary provisions in the Act; and,the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises and that interest inheritable. In the absence of the provision contained in sub-section 2(l)(iii),therefore, the heritable interest of the heirs of the statutory tenant would devolve on all the heirs of the so-called statutory tenant on his death and the heirs of such tenant would in law step into hisposition. Sub-section (iii) of Section 2(1) seeks to restrict this right in so far as the residential premises are concerned. The her it ability of the statutory tenancy which otherwise flows from the Act is restricted in case of residential, premises only to the heirs mentioned in Section 2(l)(iii) and the heirs therein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in sub section 2(l)(iii)".

(22) In Edwin Brave (supra), Mr. Justice Sultan Singh held that, where all the essential ingredients of Section 14(I)(e) of the Act, were not pleaded in the eviction petition, the provision of Order 7 Rule IIC.P.C.were attracted and the petition was liable to be rejected. It was further held that the provisions of Order 7 Rule 11CPC were mandatory, and, if the eviction petition, did not contain the facts, constituting the cause of action, then, the petition was liable to be rejected and amendment could not be allowed. It was further held that the mere fact that in the eviction petition, it was mentioned that the premises were residential or that the tenant was residing therein, with hisfamilly, do not mean that the premises were let for residence,

(23) NO-DOUBT, in the definition of the tenant, under Section 2(L) of the Act, only there is a reference to "live". There is no reference to the purpose of letting. I do not feel it necessary to go into this controvesy, whether in a suit for possession, it is essential to plead and prove that the premises were Let out for residential purposes. -

(24) Section 2(L) of the Act reads as under :- "2(L)."tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a specialcontract, would be, payable, and includes :(i) a sub-tenant;(ii) any person continuing in possession after the termination of his tenancy; and (lii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation Ii to this clause, such of the aforesaidperson's:(a) spouse,(b) son or daughter, or where there are both son and daughter,both of them, (e) parents,(d) daughter-in-law, being the widow- of his pre-deceased son,as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include-(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976;(B) any person to whom a license, as defined by Section 52 of the Indian Easements Act, 1882 has been granted.Explanation 1.-The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows :(a) firstly, his surviving spouse;(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date or his death;(e) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouses on or daugther or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and(d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there is no surviving spouse, son,daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them,did not ordinarily live .in the premises as a member of the family of the deceased person up to the date of his death.Explanation II. If the person, who acquires, by succession,the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.Explanation III.-For the removal of doubts, it is here by declared that-(a) where, by reason of Explanation, Ii, the right of any successor to continue in possession after termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after termination of the tenancy shall not, on such extinguishment,pass on to any other successor, specified in any lower category or categories, as the case may be;(b) the right of every successor, referred to in Explanation I, continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs."

(25) In the plaint, appellant did not' mention that the premises were let out to Smt. Ganga Devi, for residential purposes. However, it was alleged that Smt. Ganga Devi, was resident of 4896, Laddoo Ghati, Paharganj, NewDelhi. Paras 1 and 5 of the plaint read as under : "I.That Smt. Ganga Devi, widow of late Shri Tara Singh,resident of 4896, Laddoo Ghati, Paharganj, New Delhi, was a tenant under the plaintiff with respect to one room and verandah on the ground floor of property bearing no. .4896, Laddoo Ghati, Paharganj,New Delhi, at a rent of Rs. 10.00 per month. The tenancy was according to English Calendar commencing on the first and ending on the last day of the month. The tenancy premises of Smt. GangaDevi are shown in red colour in the plan attached herewith.5. That the defendant was not financially dependent on the deceased Smt. Ganga Devi and was also not residing with her. He is a loading Fireman with the Delhi Fire Service posted at Moti Nagar Fire Station and had been allotted a quarter no. A-3 at the fire service station where he had always been residing with his family members. Thus, he was neither dependent on the deceasedSmt. Ganga Devl nor was he residing with her at the time of herdeath. The defendant thus did not inherit any right of tenancy in respect of the premises aforesaid on the death of Smt. Ganga Devi.Under the relevant provisions of the Delhi Rent Control Act, the defendant could retain the premises for a period of one year only after the death of the deceased."

(26) It will be useful to reproduce paras 1 and 5 of the written statement, which are as under :- "PARAI of the plaint of the plaintiff is admitted to be correct excepting the tenancy premises allegedly shown in red coloring the plan attached since no copy of the site plan has been made available to the defendant.Para no. 5 of the plaint of the plaintiff is wrong and denied to be correct. It is also specifically denied that the defendant was not financially dependent on deceased Smt. Ganga Devi and was also not residing with her. In this connection it is submitted that the defendant has been continuously living with dece.ased Smt.Ganga Devi till her death since childhood of the defendant. It is further submitted that while it is admitted that the defendant is inservice with Delhi Fire Service and has been allotted a quarter, but it is submitted that the defendant and his children have been living in the suit premises. Further, all the four children of the defendant along with their mother are continuously living in the suit premises,while the defendant also has been living in the premises, apart from having his voting rights and ration card in the said area. The quarter allotted to the defendant is rarely used by the defendant and that too for emergency and/or unavoidable reasons. It is further submitted that after the death of the original tenant Smt. GangaDevi in the absence of the termination of her tenancy the defendant has become tenant in the suit premises, and the plaintiff has got no right to claim any possession of the said premises. Even assuming that the plaintiff has any right to evict the defendant from the suit premises the plaintiff can do so under the Delhi Rent Control Act only."

(27) NO-DOUBT, the words 'residential' or let out for residential purpose'.have been omitted in the plaint. But, from the tenor of the plaint. It becomes clear that plaintiff referred to residential accommodation, where late Smt.Ganga Devi was residing. This becomes further clear, from paras 1 and 5 of the written statement. defense, taken by respondent was, that he had been continuously living with his mother, till her death, since his childhood. Not onlythis, respondent also categorically stated that he and his children had been living in the suit premises, along with late Smt. Ganga Devi, till her death.

(28) It is, thus apparent, from the full reading of the pleadings, that the premises in question, not only were for residential, but were let out for residential purposes. For the omission, on the part of appellant, to specifically state that the permises were let out for residential purposes, the plaint could not be rejected, under. Order 7 Rule Ii C.P.C., as, the cause of action was clear,from the reading of the pleadings.

(29) Infact, there was no controversy, between the parties, with regard to the purposes of letting and/or the nature of the premises. In other words, the parties knew fully well, that not only the premises were residential, but same were let out for residential purposes. With this knowledge and understanding,both the parties went to the trial. It means, that omission on the part ofappellant, to state the purpose of letting out as residential, did not cause,any prejudice to respondent. It may also be noticed that, in his cross-examination, respondent admitted, that his mother was residing in the premises and was not doing any work there. It was rather the case of respondent that, till the death of his mother, he was residing with his mother.

(30) In his written statement, no plea was taken by respondent, that the plaint did not disclose any cause of action, for the reason, that plaintiff failed to mention the purpose of letting. For the first time, this point was raised before the First Appellate Court.

(31) Under the facts and circumstances of the case, this point, could not be allowed to be raised, for the first time, before the Appellate Court, because no prejudice had been caused to respondent, on account of the omission, on the part of appellant, to state the purpose of letting out. Moreover, as,observed above, the parties knew fully well, as to what was the controversy in the suit.

(32) I am in full agreement, with the views, of Ms. Justice Leila Seth,as expressed in Rup Chand (supra). The facts of case in Edwin Brave (supra), are not applicable, to the facts and circumstances of the present case.

(33) In my opinion, the close reading of the plaint, does indicate, that the premises were residential. The combined reading of the plaint and writtenstatement, also indicates that, the premises were residential premises and thesame were let out for this purpose. This view finds support from the cross-examination of respondent. In other words, the plaint did disclose cause of action.

(34) I further hold that, it is obvious from the pleadings and evidence that both ' the parties, knew fully well, that the premises were let out for residential purposes, and no prejudice was caused to respondent.

(35) Under the facts and circumstances of the case, the result is that the plaint could not be rejected, under Order 7 Rule Ii Civil Procedure Code by the learned First Appellate Court. The appeal is allowed. The impugned judgment is set aside case is remanded back to the First Appellate Court, for deciding the same on merits. Parties, are however, left to bear their own costs.