OMPRAKASH Vs. KANHAIYALAL

JUDGEMENT

(1.) THIS appeal is against an order of the first appellate Court in a suit for ejectment under the Accommodation Control Act setting aside the decree in favour of the plaintiffs passed by the trial Court not on any dissident finding on the facts but on the ground that the plaintiffs having failed to mention in the plaint that the business they were going to start in premises was one dealing in books, they could not be heard to state this in evidence. The landlords on the other hand, pointed out that though the defendants had sought to make this a ground in the written-statement, and had actually suggested that the trial Court might call for particulars, it had not done so and in any event the plaintiff had in his evidence which was the very first step in the trial, clearly stated that he was interested in the book trade and was going to start a book shop in the accommodation. The defendant had joined issue on the competency and the fitness of the plaintiff for running a business in books and various ancillary matters like the availability of funds with the plaintiff. These points had been examined by the trial Court and had resulted in a finding in favour of the plaintiffs. At no stage according to the plaintiff respondent in the appellate Court had the defendants felt any difficulty because of the non-mention of the book trade in the plaint or as for that matter in the notice. It is on this basis the second appeal has been filed.

(2.) THE findings on all the other issues in both the Courts are in favour of the plaintiffs; but the appellate Court's finding on the genuineness of the personal need is not complete. In case the appeal is dismissed there will be nothing more to be done in this regard. If, however, the appeal is allowed the case will have to go back either under Order 41, rule 25, Civil Procedure Code or on a complete remand to the appellate Court for a finding on this issue or for disposal in the light of the directions in this Court's judgment.

(3.) HE has been cross-examined at some length regarding his experience in this line and his special aptitude for it and the availability to him of the capital of ten to twelve thousand rupees which the witness stated was in his opinion necessary for starting this business. The effect of his evidence on these points will certainly have to be examined over again by the appellate Court which is the highest Court of facts. But that is not our immediate problem. The cross- examination of this witness and the defence evidence show clearly that, whatever the merits, the defendants were not hampered in the conduct of their case by the absence of these details in the plaint and their emergence only in the evidence of the plaintiff. That is one of the reasons why the trial Court did not treat the omission to mention the particular kind of business as itself a ground for unsuiting the plaintiff. On the contrary that Court found both on the facts that the need was genuine and also on the absence of prejudice by the non-mention of this particular detail in the plaint. So as far as this point was concerned it was for the defendants to make out in the appeal, apart from their attack on the merits, that this particular feature of the plaintiffs' case, namely, the mention of the book business only in the evidence had prejudiced the conduct of this case in any manner. That has not been done.