DAYA SINGH Vs. SMT. SHANTA ANAND

JUDGEMENT

(1.) The tenant-petitioner has filed this revision petition against the order of the Appellant Authority, Chandigarh dated 11th December, 1975, whereby the order of the Rent Controller, dismissing the application for ejectment, was set aside and order of ejectment was passed against him.

(2.) The landlords, who are husband and wife, filed the application for ejectment on various grounds, but in this petition, we are only concerned with the ground that the tenant used the building for a purpose other than for which it was leased as contemplated under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). The rented premises consists of Shop-cum-Flat No. 37, Sector 19-D, Chandigarh. In the application for ejectment, the landlords pleaded that the tenant is liable to ejectment on various grounds, including that "The respondent has started dry cleaning business with effect from 16.8.1973 and this is in violation of the terms and conditions of tenancy. The building is damaged by this Act". In reply to this para, the tenant-petitioner stated, that "Para 5 (f) is admitted to the extent that the respondent is doing dry cleaning business. The rest of the Para is incorrect". On the pleadings is the parties, the Rent Controller framed the following issues : -

(3.) Mr. H.L. Sarin, Senior Advocate, learned counsel for the tenant, vehemently argued that the landlord has failed to take any specific plea in his ejectment application in this respect and in the absence of my plea, no amount of evidence can be looked into. From the pleadings, he pointed out that what the landlord has pleaded, is only that by starting dry cleaning business the building has been damaged by this act. According to him, it was never set up a ground for ejectment of the tenant. After going through the pleadings of the parties, I am of the opinion that this contention has no force. Moreover, there is a specific issue in this respect and the parties have led evidence on that issue. It is well settled that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in reputation of those of the other side, it cannot be said that the absence of an issue was fatal of the case or that there was mis-trial which vitiates proceedings. Reference in this respect can be made to Nedunuri Kameswaramma v. Sampati Subba Rao, 1963 AIR(SC) 884.