KAILASH CHANDER Vs. TARLOK CHANDER

JUDGEMENT

(1.) Respondent no. 1 obtained an eviction order against respondent no. 2. on the ground in S. 14 (1) (h). Appellant then applied under S. 25 of the Rent Act claiming to be in prossession as a 'lawful sub-tenant' since 1952 pleading that he had given notice U/S 16(2) to the landlord of the fact of sub-tenancy when the Rent Act came into force. Landlord denied receipt of this notice. Appellent did not allege that sub-tenancy was with the written permission of the landlord and due to this omission the Controller held that the application did not disclose any cause of action. In appeal the appellant applied for amendment of his application to include the plea that the sub-tenancy was with the written permission of the landlord. Application for amendment wars held as not bona fide and the appeal was dismissed. The Appellant then approached High Court, where 2 questions for decision were formulated (1) Whether pleading of the objector was wrongly dismissed as not disclosing cause of action, & (2) whether application for amendment was wrongly disallowed as mala fide. Para 5 onwards the judgement is :- Question No. (1) :

(2.) According to the principles underlying Order 6 Rule 2 of the Code of civil Procedure 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 plaint but not the evidence thereof. Shri G. L. Seth, learned counsel for the appellant, contends that the pleading that the appellant was a lawful subtenant amounted to a pleading of the material facts and the reference to the written consent of the landlord was unnecessary as that would be details which are not to be stated inasmuch as the pleading has to be concise. In my view the expression "lawful sub tenant" is a conclusion of law. What is lawful depends upon the relevant law The requirement of the relevant law under section 16 (2) was that the sub tenancy should have been created after obtaining the consent in writing of the landlord. The consent is a question of fact. Therefore the material fact in this case was to plead the consent in writing from which the conclusion of law would follow that the objector was a lawful sub tenant. The mere pleading that the objector was a lawful sub tenant does not necessarily mean that the tenancy was created with the consent in writing of the landlord. The objector might have well believed that because he was in possession with the knowledge of the landlord from 1952 he was a lawful sub tenant. The notice alleged to have been sent by the objector to the landlord expressly says that the fact of the sub tenancy was in the knowledge of the landlord. The notice does not say that the landlord had given his written consent to the sub tenant. Therefore the pleading of the objector apparently did not imply that the sub tenancy was created with the written consent of the landlord. Under Order 6 Rule 4 it was necessary for the objector to give particulars of the creation of the lawful sub tenancy particularly because Section 16(2) states that it could be created only with the written consent of the landlord. The written consent of the landlord could exist only in the form a document. It has necessary, therefore, for the objector to state under Order 6 Rule 9 the effect of the said document. Under Order 7 Rule 14 the objector had to rely upon the document of consent and under Order 7 Rule 15 he had to state in whose possession the document was. The objector did not comply with these rules of pleading. Under Order 7 Rule 1 (e) the facts constituting the cause of action and when it arose had to be stated by the objector. The only fact which constituted the cause of action was the written consent of the landlord to the creation of the sub tenancy under section 16(2). The lawful nature of the sub tenancy followed as a conclusion of law. These facts were not pleaded. The conclusion is irresistible, therefore, that on the principle underlying Order 7 Rule 11 (a) the application under Section 25 was liable to be rejected on the ground that it did not not disclose a cause of action. ;

(3.) If the only question in this case had been whether the pleading of the objector should be construed strictly or not, I would have been inclined to hold that the pleading could have been construed liberally provided that the bona fides existed on the side of the objector. If the objector had really indicated even outside his pleading that the tenancy had been created with the written consent of the landlord. I would not have held that the application failed for non disclosure of a cause of action but would have allowed the objector to amend the application to state the cause of action and to prove the facts constituting it. Unfortunately the bona fides was completely absent from the case of the objector and this brings me to the next question. Question No. 2 :