O P KAPUR Vs. PADMA KAUR

JUDGEMENT

(1.) The petitioner sued the appellant for eviction on the ground of bonafide requirement. The Controller was not satisfied and he dismissed the petition. In appeal the Tribunal reversed the Order and tenant appealed to the High Court where his appeal was accepted.) Paras 7 to 15 of the High Court Judgement are :-

(2.) In this second appeal by the tenant before me, two main contentions are raised viz. (i) the evidence adduced by the landlady regarding her bonafide necessity to occupy the particular flat presently in the tenant's possession was contrary to her pleading and even otherwise the landlady had failed to prove such bonafide necessity, and (ii) that the landlady was already in occupation of reasonably suitable residential accommodation. The first contention requires a careful understanding of proviso (e) to 14(1) of the Act. The proviso (e) to section 14(1) are divisible into two parts viz. (i) those relating to the conduct of the tenant and (ii) those relating to the need of the landlord irrespective of the conduct of the tenant. Proviso (e) falls into the second class. As the conduct of the tenant is quite blameless, it is necessary for the landlord to prove fully the requirements of proviso (e) before he can succeed in evicting a tenant whose conduct has given no cause of action to the landlord. It is crucial that the requirement of the landlord for the premises should be bonafide or in good faith. According to Section 3(22) of the General Clauses Act, 1897, a thing is deemed to be done in good faith, where it is in fact done honestly. Is the landlady acting honestly in demanding possession of the premises ? The lease of this flat to this tenant and of the adjoining flat to one Shri Mathur was given by the land lady in 1963. The pleading in para 1.8 (a) of the eviction petition was that the premises were let to the respondent temporarily for a limited period of one year and the respondent had agreed to vacate the premises after one year but he failed to vacate the same. Had this pleading been true the landlady would have asked the tenant to vacate after the expiry of one year of the tenancy. There is no credible evidence to show that this was done. Even the other tenant Shri Mathur continued in occupation till 1966. The landlady had built the building and annexes consisting of flats only for the purpose of letting them out. She was thus aware of the ordinary law relating to tenancy. She could not be so-naive as to believe that she could let out both the flats for one year and could expect to get them back from the tenants without difficulty. Neither the Controller nor the Tribunal has even referred to the letting been for one year only. Obviously, both the courts considered the plea not worth consideration being totally unbelievable.

(3.) The landlady and her husband in evidence stated that the reason for letting out the pre nises was that the financial condition of the landlady had deteriorated. About this, we have only the evidence of the landlady and her husband and of no one else. The Controller could not believe such evidence particularly because it was not shown to him that the landlady was an income tax payer. The Tribunal has, however, believed the evidence and also that the landlady was an income tax payer. Ordinarily, the finding of the Tribunal would be binding on me. But in the present case it is vitiated by the following reasons : - (i) the specific reason given by the Controller that the case made out by the land lady in her evidence was not stated by her either in the petition or in the replication was not at all considered by the Tribunal. After the land lady bad stated in the petition that the tenancy was for one year, the tenant denied that the tenancy was for one year. The land lady had an opportunity then to say in replication that alternatively the tenancy was given because the land lady needed money due to worsening of her financial condition This was not done. The argument, on which the Controller's judgment was based was not answered by the Tribunal. In ground No. 4 of the appeal before me, this ground of varience between the pleading and evidence has again been raised by the tenant. Order 6 Rule 2 Civil Procedure Code requires that a pleading shall state the material facts on which the party pleading relies for his claim ..... but not the evidence by which they are to be proved." The language of proviso (e) contain only a statement of law. A mere reproduction of the language is ot, therefore, a sufficient pleading. The facts constituting the need of the landlord would diner from case to case and must be stated. The land lady in this case chose to state the facts on which she relied for her claim falsely. Can she then be allowed to give evidence that the reasons for letting was a different one viz. her need to raise additional money ? The answer to this question would ordinarily be in the negative. The reason is that the opposite party is taken by surprise if the petitioner is allowed to give evidence contrary to the pleading. The trial is thus vitiated. This is irrespective of the question whether the evidence given contrary to the pleading is true or false. It is rejected primarily because the opposite party was denied the opportunity of meeting the new case made in evidence. It is only if, despite the variance between the pleading and the proof, an issue was clearly raised and both the parties adduced evidence on the said issue that it can be said that no prejudice was caused by the variance between pleading and proof. In the present case, the issue was whether the need of the land lady was bonafide. The tenant was put on notice only by the pleading of the land lady. He succeeded in demolishing the case pleaded by the land lady viz. that the tenancy was given only for one year. He was taken by surprise by the evidence given by that landlady that her financial condition had worsened and, therefore, the lease was given and that by 1968 the financial condition had become belter again and hence she wanted the premises back. The income of the landlady was a fact within her special knowledge. The burden of proof was thus on her to show that her income in 1963 had gone down as compared to her income previous to that year and that her income in 1968 had again come up. This could be shown by production of income tax documents if she was an income tax payer or by some other credible evidence such as account books etc. if she was not an income tax payer. The best evidence in the possession of the landlady was with-held by her. An adverse inference, therefore, arises against her. It is true that the tenant did not ask her to produce the income tax documents or account books but this is because the tenant was taken by surprise. The tenant was not in a position to meet the new case made out by the land lady. There is, therefore, no reason why the trial should not be held to have been vitiated because of the variance between the pleading and the evidence adduced by the land lady. It is established law that no amount of evidence can be looked at if it is contrary to the pleading. This reason alone is sufficient for the rejection of this evidence. But there are other weighty reasons too. (ii) In 1966 the Land Lady's husband had involved tenant and his son in a criminal case but they were both acquitted. (iii) The land lady had also filed a civil suit against the tenant in the court of Additional Judge Small Causes Court but the suit was dismissed, (iv) In 1967, the land lady cut off first the water and then electricity of the tenant and he had to take action against her under Section 45 of the Act. The conduct of the land lady showed that she wanted to harrass the tenant and turn him out by illegal methods because she had no valid grounds to ask for his eviction. Had the tenancy been only for one year, she would have asked him to vacate in 1964. (v) In 1967, she advertised the whole building for sale. This conduct was conclusive to show that she had no bonafide need to reside in the flat occupied by the tenant. For, after selling the house, she would not have been able to get possesion of the flat form the tenant, (vi) In 1967-68, the land lady sought the license from the Deputy Commissioner to turn the building into a hotel. This again meant that the land lady did not need it for her own residence. This conduct was very close in point of time to the filing of the petition for eviction in 1968. The Controller thought that this conduct was inconsistant with the intention of the land lady to reside in this building. The Tribunal thought that in 1971 when it decided the first appeal, the house had not still been sold though 4 years had passed from the date of the advertisement for sale. He concluded, therefore, that there was nothing on record to show that she had any mind to sell the property now. If by the word "now" the Tribunal meant the year 197J, then his reasoning perhaps is that the land lady had changed her intention to sell the house in 1971. This would still mean that in 1967 she had the intention to sell the house. In 1967 therefore, she did not intend to reside in the house, it was incumbent on her, therefore, to show that there was any reason for her to change her mind in 1968 and that she really intended to reside in this house in 1968 when she filed the petition for eviction. The Tribunal has not been able to explain why this circumstance was not taken by it into account against the bonafides of the land lady. The reasoning of the learned Tribunal regarding the intention of the land lady to run a hotel in this building in 1967-68 is equally unsatisfactory. In paragraph 20, the Tribunal stated :- "No license was granted. Therefore, now it cannot be said that the land lady did not bonafide intend to occupy the flat in dispute for her own residence."