GOVIND PRASAD Vs. VIJAY SINGH

JUDGEMENT

(1.) This appeal by the defendant tenant, is against the judgment and decree passed by the first appellate court dated 7.8.2002 by which the first appellate court reversed the judgment and decree of the trial court dated 5.5.1998, Brief facts of the case are that the appellant-defendant's ancestor Bashesar Lal was tenant in the suit shop. The tenancy was annual. The plaintiff-Jaichand Lal-landlord filed the suit for eviction of said tenant Bashesar Lal on various grounds, like default in payment rent, sub- letting, material alteration and causing damages to the property by the tenant. Original tenant Bashesar Lal died on 9.10.1986, therefore, said Bashesar Lal's heirs were impleaded as party defendants in the suit. After trial, the suit of the plaintiff was dismissed by the trial court by judgment and decree dated 5.5.1998, against which regular first appeal was preferred by the plaintiff-landlord. The first appellate court decreed the suit of the plaintiff on the ground of sub-letting and material alteration. Hence this second appeal. Before this, the matter came up before this Court in second appeal, the plaintiff and defendant nos.3 and 4 died and their legal representatives were taken on record.

(2.) According to the learned counsel for the appellant the basic facts which are required to be pleaded to prove the case of sub-letting, have not been pleaded by the plaintiff in his plaint and this Court as well as Hon'ble the Apex Court in number of cases held that the pleading must be clear and must convey its meaning to defendant so that the defendant may contest the suit and for that purpose, he must know what are the allegations against him. It is also submitted that even subclause (e) of sub-section (1) of Section of the Rajasthan Premises (Control of Rent and Eviction ) Act, 1950 (for short 'the Act of 1950') itself provides that the landlord can seek eviction of his tenant only in case when the suit property is sub-let by the tenant "without the permission of the landlord." The learned counsel for the appellant heavily relied upon the provisions of Section 108(B)(j) of the Transfer of Property Act,1882 and submitted that sub-letting is permissible under law and because of sub-clause (e) of sub-section (1) of Section 13 of the Act of 1950 only, the landlord's permission is required for sub-letting of the rented premises. Sub-clause (j) of Clause (B) of Section 108 of the Transfer of Property Act specifically gives right to lessee to sub-lease the whole or any part of his interest in the leased property. Therefore, unless the fact constituting cause of action that the suit premises has been let out "without permission of the landlord", the suit is liable to be dismissed for non-disclosure of cause of action. The learned counsel for the appellant in support of need of strict pleading, relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah and anr.(1987(1) RCR 186(SC)) and earlier judgment of this Court delivered in the case of Phool Chand & another v. Dr. Gulab Chand ( 1999(3) WLC 189) wherein the landlord did not plead about "non-tendering of rent to the landlord" and the court held that the suit is not maintainable for want of proper pleading for maintaining the suit for eviction of the tenant on the ground of default. The learned counsel for the appellant also relied upon the judgment of the Hon'ble Apex Court delivered in the case of Udhav Singh v. Madhav Rao Scindia (AIR 1976 SC 744) wherein Hon'ble the Apex Court held that all material facts are required to be pleaded and if necessary facts are not pleaded, the suit can be dismissed on this ground alone and the same view was taken in the judgment of the Hon'ble Apex Court delivered in the case of Harkirat Singh v. Amarinder Singh( 2006 AIR SCW page 4. In the same sequence, the learned counsel for the appellant relied upon one more earlier judgment of the Hon'ble Apex Court reported in the case of Hasmat Rai and another v. Raghunath Prasad ( AIR 1981 SC 1711).

(3.) Next it was contented that when there was no pleading constituting cause of action, no evidence in support of the plea of subletting could have been considered by the courts below. It is also submitted that the documentary evidence produced by the plaintiff in the form of photographs (Exs.35, 36, 37 and 38) were wrongly relied upon by the courts below. Not only this but the said evidence, on the face of it, is unreliable and is not of the suit property. The timing on which the photographs were taken makes it clear that these documents are result of trick photography only. It is also submitted that even the plaintiff's own and his witnesses' evidence itself fully proved that these photographs are not of the property in dispute and these photographs were not taken at the time as projected by the plaintiffs. The learned counsel for the appellant submitted that even the plaintiffs' evidence in relation to the photographs (Exs.37 and 38) are that they were taken at the same time whereas Ex.37 is coloured photograph and Ex.38 is black and white photographs. There cannot be two photographs from one camera, one coloured photograph and another black and white photograph. Even if there were two separate cameras then there is no evidence of the plaintiffs that the photographs were taken by two different cameras. It is also submitted that Ex.36 is a photograph of one very small piece of wall and this photograph clearly shows that the plaintiffs produced the photograph deliberately suppressing material facts in the photograph so that he can use the photograph of any other property.