RAJ BAHADUR Vs. SUSHILA DEVI NIGAM

JUDGEMENT

(1.) This second appeal under Section 39 of the Delhi Rent Control Act, 1958, (hereinafter called 'the Act') is directed against the judgment and order dated 14th February 1978 of the Rent Control Tribun confirming the judgment and order dated 25th September. 1975 and 13th August, 1975 of the Additional Controller whereby an order of eviction was passed against the appellants under Section 14(l)(e) of the Act.

(2.) Chhail Behari Lal, deceased, one of the tenants in the suit premises was originally the owner-landlord of the suit property bearing Municipal No. 162/IX, Gali Batashan, Chawri Bazar, Delhi. Smt. Sushila Devi Nigam, respondent No. 1 was a tenant in a portion of the ground floor of the sui property. Chhail Behari Lal sold the property to one Thakur Dass vide a sale deed dated 6th February, 1956 with the result that Chhail Behari Lal and other appellants became tenants under Tnakur Dass. Thakur Dass later on sold this property to respondent No. 1-Smt. Sushila Devi Nigam vide the sale deed dated 12th August, 1960 (Ex. A.2). The appellants therefore attorned as tenants under respondent No. I by operation of law. Respondent No. 1 brought an application for eviction of the appellants-tenants on 7th November, 1973 under clauses (c),(e)and(j) of the proviso to sub-section (1) of Section 14 of the Act. Eviction order was passed only on the ground covered by clause (e) by the Additional Controller on 25th September, 1975 which was confirmed by the Rent Control Tribunal, as already stated. learned counsel for the appellants contends that the landlady respondent No.1 did not plead all the ingredients of clause (e) of the proviso to subsection (1) of Section 14 of the Act, that the eviction application did not disclose any cause of action and as such the eviction petition is liable to be dismissed He further says that evidence led by the respondent-landlady beyond pleadings should not be looked into. To appreciate the objection and its decision it is necessary to narrate some facts. The landlady in her application for eviction alleges that the appellants were tenants under the previous owner Thakur Dass and they became her tenant when she purchased the property with effect from 12th August, 1960, that the appellants executed rent note dated 15th May, 1956 in favour of Thakur Dass. The ground of eviction under Section 14(l)(e) of the Act as mentioned in the eviction petition is worded as follows :

(3.) The appellants-tenants in their written statement deny that the premises were let for residential -purposes or that the same are required bona fide by the landlady for use as her residence or for members of her family dependent upon her or that she is the owner of the premises or that she has no other reasonably suitable residential accommodation at her disposal. Besides this the appellants plead that the landlady previously purchased House No. 159 Gali Batashan, Chawri Bazar, Delhi adjacent to the suit house in 1954 for Rs. 3,000.00 and after getting the same vacated for her bona fide requirement sold the same in 1958-59 for Rs.l0,000.00 , that she desires to sell the suit house at a higher price after getting it vacated with a view to earn profits. The appellants further plead that the landlady is in possession of the whole of the ground floor and' a Barsati on the lop floor, therefore, she does not require the suit premises for her own use and that her sons are independent and have got ample accommodation independently at their disposal. The landlady in rejoinder re-asserted her requirement. She admits that she has been in possession of the ground floor and the Barsati floor; she asserts that her sons are dependent on her and have no other accomirodation at their disposal : she says that she has four sons One of them was already married at the time when the rejoinder was filed and another son has since been married. She further says in the rejoinder that other sons are grown up. One of them is a student of Higher Secondary and the others a re Government employees. She also says that she has four married daughters who visit her off and on, that the accommodation on the ground floor consisting of two rooms, two stores and a kitchen and the courtyard and Barsati and open roof on the top floor is insufficient for them. As regards the purchase on House No. 159, Gali Batashan, Chawri Bazar, Delhi and its subsequent sale. she says that the said property was on a total area of 25 sq. yards which was insufficient for her needs and the needs of her family, that the said house consisted of only one room and a store on the ground floor and a Barasati on the first floor and that the additional structure was not possible to be erected on account of Municipal Bye-laws. In view of these pleadings, the parties led evidence. The contention of the learned counsel for the appellants is that the landlady has not mentioned her family members and the existing accommodation available so her and thiat she has also not mentioned the requirement of her family members. The objection that the application does not disclose any cause of action was not taken by the appellants in the written statement. It appears to me that at this stage in the second appeal such an objection cannot be allowed to be raised. If the appellants had taken this objection in the written statement, the landlady would have cured the defect. She is now taken by surprise in the second appeal. The objection not raised in the-courts below to which the respondent has had no notice that it is going to be urged cannot be allowed to be urged in the second appeal. It is correct that the landlady did not plead the requirement of her family and she also did not disclose the existing accommodation available to her. These facts were no doubt material to constitute the cause of action for determination of the fact whether the landlady had any other reasonably suitable residential accommodation. From the written statement and the rejoinder, the available accommodation and the family members were made known to the appellants. The appellants have been in occupation of the first floor of the suit house while the landlady has been in occupation of the ground floor. Both the parties i.e. the appellants and the landlady were in the know of the real facts sought to be proved in the case It is correct that no amount of evidence can be looked into a plea which was never put forward. It seems to me that if a plea is not specifically made and yet if it is known by implication to the parties that the said plea was involved in the trial of the eviction case then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. (See Bhagwati Prasad v. Chandramaul, AIR 1966 S.C. 735). In the present case the family members of the landlady and the accommodation available with her were expressly known and pleaded by the appellants. The parties have led evidence and it has been held by the two courts below that the family of the landlady consists of herself, her two married sons, one grandchild and two grown-up sons. The husband of the landlady unfortunately died during the pendency of the eviction proceedings. As regards accommodation the plea of the appellants is that the landlady is in occupation of the ground floor and the Barsati floor. A reference to the plan shows that there are only two living rooms besides two stores and a kitchen on the ground floor and there is one Barsati on the second floor. This is the accommodation with the landlady. The allegation of the appellants' counsel is that the landlady has not mentioned the requirement of herself or her family members. The landlady respondent No. 1 by her application requires the suit premises for the residence of herself and her family members. The suit premises consists of two rooms, one store, and one kitchen only on the first floor. This allegation of the landlady that she requires the suit premises for herself and for her family member is a sufficient compliance of her requirement. 1, therefore, find no substance in the objection raised by the learned counsel for the appellants that the ingredients of clause (e) of the proviso to sub-section (1) of Section 14 of the Act are not pleaded or that the application does not disclose any cause of action. It maybe correct that the ground of eviction covered by clause (e) is not properly worded. Under Order 6 rule 2 of the Code of Civil Procedure (hereinafter called 'the Code') the plaintiff is required to plead material facts on which he relies for his claim. To claim eviction under clause (e) the landlord is supposed to allege that he is the owner, that the premises were let for residential purposes, that he requires the preraises for his residence or for the residence of his family members and that he has no other reasonably suitable residential accommodation. For proving these facts he has also to plead who are his family members, what are their requirements and what is the existing accommodation available to him so that on proof of these facts, the Controller may conclude whether the landlord is entitled to an order of eviction under Section 14(l)(e) of the Act. In the present case although the landlady did not plead the existing accommodation available to her but the tenants-appellants in their written statement pleaded the accommodation available with her which fact is not denied by the landlady. So the only question remains whether the accommodation pleaded by the appellants-tenants and available with the landlady is sufficient for the requirement of the landlady and her family members. In the facts of the present case. I do not find that the eviction petition is liable to be rejected under Order 7 rule 11 of the Code.