RAM CHANDRA SEXENA Vs. CHAIL BEHARI LAL

JUDGEMENT

(1.) Heard M.B.L. Bhargava, the learned counsel for the defendant -appellant and Mr. C.L. Agarwal for the plaintiff -respondent who has entered a caveat in this appeal at some length.

(2.) Both the courts have come to a concurrent finding of fact that the defendant -appellant having acquired vacant possession of his bungalow which was suitable for his residence, he is liable to be evicted under sub -section (1) of Sec. 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1960, hereinafter called the Act. This finding is being challenged on behalf of the appellant on the ground that neither there was averment to the effect that the appellant had acquired vacant possession of accommodation suitable for his residence nor there is any issue framed on that point. It is, therefore, argued that in the absence of an averment in the pleadings to that effect and further in the absence of an issue in that behalf no amount of evidence led in the case can be looked into as the decision of the cast cannot be based on grounds outside the pleadings of the parties and it is the care pleaded that has to be found. In this connection learned counsel for the appellant has referred me Trojan & Co. vs. Nagappa ( : AIR 1953 SC 235) Jabeda Khatun vs. Mohd. Ibrahim ( : AIR 1957 Cal 360). The Central Bank of India Ltd. vs. Hari Prasad Jalan & others ( : 1971 SCD 146) and Kusum Chand vs. Kanhaiyalal ( : 1974 RLW 378).

(3.) I have given my careful consideration to the contention put forth before me by Mr. Bhargavi. Ordinarily it is true that no amount of evidence lead at the trial can be made the foundation for the decision of a case which was not pleaded nor there was any issue on that point. But this rule is not an inflexible one and is subject to certain exceptions. The rule has no application to a case where parties go to trial with knowledge that a particular question is in issue through no specific issue has been framed there vide Nagubai vs. Shama Rao ( : AIR 1956 SC 593). It may be mentioned that the rule of second use allegata et probata is based mainly on the principle that no party should be taken by surprise by the change of case introduced by the parties. Therefore, the test when an objection of this kind is taken, it is to see whether the party aggrieved has really been taken by surprise or is prejudiced by the action of the opposite party. In applying this test the whole of the circumstances must be taken into account with careful scrutiny to find out whether there has been such surprise or prejudice as will disentitle a patty to relief (See Haji Umar vs. Oustadj (AIR 1915 PC 89)). Every variance, therefore between pleading and proof of is nor necessarily fatal so the suit or defence and the rule of secundum allegata et probata will not be strictly applied where there can be no surprise and the opposite party is no prejudiced thereby vide Sagarmull Nathany vs. Galstaun ( : AIR 1930 PC 205) In the light of the above preposition it has to be seen whether the defendant -appellant has been taken by surprise or has been prejudiced on account of the fact that there was no averment to the effect that the defendant -appellant has acquired alternative vacant possession of accommodation suitable for his residence and also on account of abreact of an issue to that behalf. It is true that there is no express allegation in so many words that the defendant appellant had acquired vacant possession of accommodation suitable for his residence but in para 3 of the plaint it has been clearly stated that the defendant wanted his house vacated from his tenant for his own residence and for that purpose he had filed a suit against Shri K.C. Sethi and got the house vacated from him. The appellant him self has admitted that he had filed a suit against his tenant Shri K.C. Sethi for eviction from his house for his residence. He has further admitted that he had written a letter to the respondent which is as admitted document that he would vacate the disputed premises by May 10, 1960 and will shift in his own house. These facts are significant to show that the house which the defendant got vacated is suitable one otherwise he would not have filed the suit on the ground of bona fide necessity for his residential purpose. Further more he would not have admitted that he will shift in his own house got vacated from Shri K.C. Sethi. These materials are sufficient to show that the house which the defendant get vacated from K.C. Sethi was suitable one. The defendant knew it very well that the plaintiff had alleged that he has got his own house vacated from Shri K.C. Sethi. In the circumstances there was hardly any ground for causing prejudice or springing surprise upon the defendant even when there was no express pleading as to the suitability of the house or an issue to that effect. The parties were very well aware from the facts and the evidence led as to the nature of the case and it is very difficult to accept the argument that in the absence of pleading as to the suitability of the house the appellant had been prejudiced. Both the court below have taken note of these material facts and come to the conclusion that the appellant had acquired vacant possession of accommodation suitable for his residence. This finding of fast is not liable to be challenged as has sought to be done by the learned counsel for the appellant. There was sufficient notice of the nature of the case set up by the plaintiff respondent & both the parties knew well the points of controversy between them. In the circumstances it hardly lies in the month of the defendant to say that in the absence of a pleading or an issue regarding the suitability of the residential house with the defendant, he has been taken by surprise or has been prejudiced in any way (sic) v/s. Ugar Sain. (AIR 1966 Punj 508) case is clearly distinguishable as in that case there were no materials to show that the defendant had acquired accommodation suitable for his residence. In that case all that was brought on the record was that the defendant had built a new house but there was no material to show that the new built house was suitable for his residence. That case therefore, is of no avail to the appellant. The concurrent finding of the fact arrived at by both the courts below that the defendant had acquired vacant possession of accommodation suitable for his residence cannot therefore he interfered with in second appeal. There is, therefore no substance in the second appeal. It is dismissed summarily.