Om Parkash Kuthiala vs Dr. Sharad Rohtagi
1998 Latest Caselaw 819 Del

ORDER

S.N. Kapoor, J.

1. This appeal is directed against a decree for possession of Barsati Floor of House No. 51/3 (Original Road) Deshbandhu Gupta Road, Western Extension Area, Karol Bagh, New Delhi.

2. Briefly stated, the relevant facts which have led to the filing of the present appeal are as under:

3. On 26th October 1971, Smt. Mangla Devi let out the first floor and a motor garage on the ground floor in the aforesaid premises by lease deed dated 26th October 1971. Under clause 13 of the said deed, the lesser had permitted use of terrace on the second floor temporarily without any compensation. Clauses 13 and 14 of the said lease deed are as under:

"13. That the Lessor has permitted temporarily without any compensation the use of the terrace on the second floor. The Lessee covenants with the Lessor specifically that he will not obstruct or make any hindrance in the construction of the second floor if the Lessor obtains requisite permission to do so from the Authorities concerned.

14. That no part of the second floor has been let out to the Lessee and the entire premises on the second floor including the Barsati and terrace exclusively belong to the Lessor which she may utilise for any purpose whatsoever including fresh construction of the premises".

4. The barsati was lying locked. In 1983, it was found that the tenant had broken upon the lock of the 'barsati' and started using the same. Though the appellant promised to remove his goods, according to the case of the plaintiff, he did not vacate. Accordingly, the plaintiff/respondent filed the suit for a decree of possession of "the Barsati of the House No. 51/3, Original Road now known as Deshbandhu Gupta Road, Western Extension Area, Karol Bagh, New Delhi shown in red in the plan" and also "for Rs. 10,800...against the defendant".

5. This suit was contested inter alia on the ground that the defendant was and continues to be in possession as tenants and in respect of first floor and garage on the ground floor, for, his demand and request to include the barsati floor in the tenancy of the defendant was accepted by the landlord. The defendant is not liable to pay any amount.

6. The trial proceeded on following three issues:

1. Whether the plaintiff is entitled to a decree of possession?

2. Whether the plaintiff is entitled to a decree for recovery of Rs.10,800/- as prayed for?

3. Relief.

7. The learned trial court decreed the possession of the entire barsati floor including the barsati as shown in the site plan Ex.P6 and he also decreed recovery of Rs.10,800/- against the defendant. The appellate court upheld the judgment and decree of the first appellate court.

8. Feeling aggrieved by the aforesaid judgment and decree, the second appeal has been filed.

9. Shri Madan Bhatia, learned Sr. counsel appearing on behalf of the appellant contends and rightly so that the barsati and terrace are two separate premises though both are situated on the second floor especially in view of the Clauses 13 and 14 of the lease deed referred to above. The appellant was granted licence of the terrace on the second floor. The decree, as has been passed could not have been granted, for, firstly, the appellant was entitled to use the terrace until lesser was in a position to make construction after taking requisite permission; secondly, the plaint is founded on the allegation that the appellant forcibly opened the barsati in January 1983 and occupied it. the cause of action in para 12 is confined to barsati, the damages for wrongful use and occupations are confined to barsati; the court fee has been paid on barsati only and the notice dated 22nd March 1985 is also confined to barsati; thirdly, the licence in question was not revocable; there is no averment in the plaint that the licence was ever revoked, nor any court fee has been paid thereon. He further contends that the plaint lacks material particulars so far as the terrace is concerned, and the plaint does not conform to Order 6 Rule 2 read with Order 7 Rule 1 (e) and Order 6 Rule 15. In the absence of any pleading, no such decree could have been passed. Consequently, the appeal should be allowed.

10. On the other hand, it is contended that supposing for the sake of argument it is accepted that the pleadings were not happily worded and defective, parties knew the case that the suit has been filed for the entire Barsati Floor for the title of the suit itself indicated that suit was for possession of barsati floor and for the recovery of Rs.10,800/-. It was not confined to barsati alone. Replies to para 4 and 5 of the written statement also indicate that the defendant knew the case of the plaintiff that the suit has been filed for entire barsati floor and not confined to barsati alone. It is also contended that in terms of Clauses 13 & 14 the barsati floor always remained in actual possession of the plaintiff. Mr. Mukul Rohtagi, the Sr. advocate appearing on behalf of the respondent contends that no prejudice whatsoever could be said to have been caused to the defendant for the filing of the suit itself amounted to revocation of the licence and no exception can be taken to the decree on the ground of pleadings in view of the Supreme Court judgment in Ram Sarup Gupta Vs. Bishun Narain Inter College & Ors., .

11. Having heard the parties counsel, it seems desirable to consider whether the licence to use the terrace was irrevocable, as submitted by Shri Madan Bhatia. A bare reading of Clauses 13 and 14 indicates that "the lessor had been permitted temporarily without any compensation the use of the terrace on the second floor" and it also appears that the terrace "exclusively belong to the lessor which she may utilise for any purpose whatsoever including fresh construction of the premises". A conjoint reading of clause 13 and 14 indicates that the licence was purely temporary. The landlady could utilise it for any purpose whatsoever including fresh construction of the premises by way of abundant precaution it has been specified that the appellant would not obstruct or make any hindrance in the construction of the second floor. If the lesser obtains requisite permission to do so from the authorities concerned. It has to be understood that ground floor and first floor was given on rent to the appellant and as such, he might have created problems in case fresh construction of the premises on Barsati Floor was to be made and passage is not given to come to barsati floor. It may be added that it is not the case of the appellant that licence was either "coupled with transfer of property and such transfer is in force" or he "has executed a work of permanent character and incurred expenses in the execution" to make it irrevocable under Section 60 of the Easements Act, 1882. Plea of irrevocability of the licence was not taken earlier instead case was of claim of tenancy rights. In this light, it cannot be accepted that the licence was irrevocable till the lesser obtained requisite permission to raise construction from the authorities concerned for the landlady could utilise the terrace for any purpose whatsoever. In so far as revocation of the said licence is concerned, the revocation may be expressed and implied. Filing a suit "for possession of the Barsati Floor" coupled with the inclusion of the terrace in site plan of the suit property filed along with the plaint amounts to revocation of the licence for the lessor/owner grantor indicated his determination to put an end to the licence under Section 61 of the said Act. Moreover, the appellant by claiming to be the tenant of entire Barsati Floor has abandoned his character as licence and the circumstances indicate that the licence has to be deemed to have been revoked by the conduct of the appellant himself under clause (f) of Section 62 of the Act. Under Section 63 of the Act the licensee has availed more than reasonable time to remove his goods, if there is any on the terrace. Consequently, this contention of the learned counsel for the appellant must fail for now it amounts to virtual abuse of the process of the court.

12. As regards the lack of pleadings and material particulars in regard to cause of action etc. in relation to terrace in case one adopts the pedantic approach, there appears some substance in the submissions of Shri Madan Bhatia for the facts pointed out by Shri Madan Bhatia do exist. But in a similar situation, Supreme Court in Ram Sarup Gupta Vs. Bishun Narain Inter College & Ors. (supra) observed in para 6 as under:

6. "...It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. the object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial of those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal..."

13. If one examines the plaint, written statement, the evidence led by the parties, while the defendant claimed the tenancy rights in respect of entire barsati floor without there being any increase in the rent and led evidence in order to prove the tenancy but failed, though the defendant pleaded that the entire barsati floor was part of his tenancy for his demand and request had been accepted yet no issue was pressed in this respect by the defendant at any stage. In view of the Regd. lease deed, its oral modification could not be accepted. The learned appellate court rejected the similar contention in view of these very facts. In terms of lease deed, it was just a mere privilege of the pleasure of the lessor, the possession of the terrace has to be deemed with the landlady/grantor of the licence. It thus appears that while there is no doubt that the entire pleadings in relation to terrace excluding barsati and latrine did not expressly indicate or say so but at the same time it is also very much apparent that the heading of the plaint, the reproduction of clause 13 and 14 of the lease deed, the replies of the defendant claiming tenancy over the entire barsati floor leading evidence in that respect, leave no room for any doubt that both the parties knew the case and the issues upon which they went to trial. As is indicated by the Supreme Court in Ram Sarup Gupta Vs. Bishun Narain Inter College & Ors. (supra), the enquiry should not be so much about the form of the pleadings but on the point whether in substance the parties knew the case and the issues on which they proceeded on trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded on trial on those issues by producing evidence, it is not open to the appellant to raise the question of absence of pleadings in second appeal.

14. The learned counsel for the appellant no doubt referred to Samant N. Balakrishna Vs. George Fernandez & Ors., and Mohammad Khalil Khan & Ors. Vs. Mahbub Ali Mian & Ors., . But in view of Ram Sarup Gupta Vs. Bishun Narain Inter College & Ors. (supra) (the latter case), I find it difficult to allow the appeal just on the basis of the defective pleadings.

15. Besides one cannot be oblivious to the observation of this court made in para 4 in Smt. Parvati Devi Vs. Mahindra Singh, 1996 I AD (Delhi) 819.

This reads as under:

"4. Coming to the question of eviction being for partial eviction, I fail to appreciate how non-mention of an open terrace will make any difference to the eviction petition. The cases of eviction petitions being for partial eviction are really those where some substantial portions of the tenancy premises, i.e. a room or a bath room forming part of exclusive tenancy to the tenant concerned, are excluded from the eviction petition. A terrace in the property is not a place which can be used for substantial residential purposes. Merely because the petitioner has not included the terrace of the first floor in the eviction petition is not sufficient to disentitle the petitioner to seek eviction of the respondent. The respondent cannot use the terrace alone if he is evicted from rest of the tenancy premises. In such cases, the court has to look to the substance rather than to form."

16. It may further be mentioned that this court again observed in M.B. Singh Vs. Vidya Bhushan Khanna, All India Rent Control General 1986(1) 1 (Para 10). The para reads as under:

10. "...The object of the pleading is that each side must be fully alive to the questions that are about to be argued so that they may have an opportunity to produce such evidence as may be appropriate to the issues. The purpose is to prevent surprise. In the present case the tenant knew the case of the landlord which he was required to meet. No surprise was caused to him at the trial. In the written statement he had raised the plea that he was always ready and willing to pay the rent but had received a letter from the daughters of late Shri Anant Ram Khanna not to pay rent and therefore he was in a fix to whom the rent should be paid. The tenant thus knew the case which he was required to meet. No injustice has been caused. This contention, therefore, cannot be accepted.

17. As regards the plea that the court fee has not been paid in respect of terrace, the learned counsel for the appellant on the authority of Jagdish Chandra Ghose & Ors. Vs. Basant Kumar Bose & Anr., also contends that court fee had not been paid while the court fee is required to be paid in a suit for eviction from a former licensee turned trespasser. Again, it appears that the entire argument has been built up as if the possession was ever delivered to the appellant; it was a simple privilege and it has come to an end for he was never in "possession". The appellant might have been allowed to use it. User does not amount to possession so long as any vested right is not created in the property.

18. It may further be mentioned that a court while granting relief is supposed to adopt a justice oriented approach and could always grant appropriate relief to avoid unnecessary multiplication of suits and to do substantial justice in between the parties. Supposing the decree for possession is granted in respect of barsati as well as latrine and the appellant is allowed to use the terrace without having any right therein, it would just amount to perpetuating illegal and unauthorised occupation of the terrace and then throttling justice by the niceties and technicalities of the rules of procedure. This shall be against the basic tenets of doing substantial justice in between the parties. One cannot ignore a a well known judicial proverb that all rules of procedure are hand maids of justice. In such circumstances, I find it difficult to accept the submission of the learned counsel for the appellant. In so far as loss of revenue is concerned, Section 12(ii) of the Court Fee Act is an appropriate answer. Since the appellant was never in possession, relief of prohibitory injunction to enter upon terrace and mandatory injunction to remove its article from the terrace, if there is any, could be the only relief. Since court fee should have been paid on permanent and mandatory injunction also, it would be appropriate if in exercise of the powers granted under Section 12(2) of the Court Fee Act, the respondent is directed to pay court fee for perpetual injunction against the respondent not to enter upon terrace and mandatory injunction to remove article from the terrace, if there is any, within three weeks. On doing so, the respondent shall be entitled to permanent injunction as well as mandatory injunction as aforesaid.

19. The judgment and decree of possession of barsati along with latrine is hereby confirmed and the appellant is also restrained from entering upon terrace and to remove its article from the terrace, if any, forthwith, subject to payment of court fee within three weeks.

20. The appeal is disposed of accordingly.

21. Parties are left to bear their own costs.