In Re: Partha Sarathi Banerjee and Others

N.K. Mitra, J.—This revisional application arises out of the order of the learned munsif rejecting the defendants'' prayer for expunging Exhibit Nos. 1 and 2 on the ground of defective pleading under Order VI Rule 2 of the Code of Civil Procedure. The plaintiff/opposite party No. 1 (sic)e Suit No. 212 of 1981 in the 4th Court of the learned munsif at Howrah against the petitioners and the opposite party Nos. 2 to 7 for their eviction from the suit premises inter alia, on the grounds of reasonable requirement and default in payment of rent since February 1979. In the plaint, the plaintiff claimed to be the owner of the disputed premises. The defendants entered appearance, and filed written statement denying and disputing the material allegations made in the plaint. Subsequently, an application for amendment of the plaint was filed by the plaintiff, which was opposed by the defendants by filing written objection, but ultimately, the said application was allowed by the learned munsif. On 18th December, 1992 P.W. I was examined in part, and the plaintiff in support of his case, filed a sale deed and also a copy of the mutation report of the Howrah Municipal Corporation which were marked as Exhibits 1 and 2 respectively, in the suit. The petitioners on 8th January, 1993 filed an application before the learned munsif for expunging the said Exhibits 1 and 2 inter alia, on the grond that since the plaintiff in the plaint had not stated the material fact relating to acquisition of ownership of the disputed premises, and also had not stated the nature of the deed onwhich he relied in deducing his title, he should not be allowed to file documents subsequently, specialy at the hearing stage, in support of his case. The said application was opposed by the plaintiff, and the learned munsif by the impugned Order No. 357 dated 11th February, 1993 rejected the defendants'' said application inter alia, upon a finding that on perusal of the plaint, it appeared that it was stated therein that the plaintiff was the owner of the suit property and in support of the said contention the plaintiff had submitted those two documents which were marked as Exhibits 1 and 2 and hence, it could not be said, that the plaintiff had failed to disclose the facts on the basis of which, the said two documents had been marked as Exhibits, and/or that the provisions of Order VI Rule 2 of the CPC had been violated, and the said order is the subject matter of challenge in the present revisional application.

It is contended by Mr. Mukherjee, learned Advocate appearing on behalf of the petitioners, that since the plaintiff/opposite party No. 1 had not disclosed in the plaint the material fact of his acquiring ownership of the suit premises from his vendor by way of registered deed of sale and also the subsequent mutation of his name in the Howrah Municipal Corporation, even in a concise form, the plaint is defective as per the specific provisions of Order VI Rule 2 of the CPC and as such, the plaintiff should not be allowed to lead documentary evidence to cure such defects and on that ground Exhibits 1 and 2 should be expunged and in support of his contention refers to a Division Bench decision of this Hon''ble Court in the case of Motilal Poddar vs. Judhistir Das Tear and others, 20 CWN 310.

Mr. Banerjee, learned Advocate appearing on behalf of the caveator opposite party No. 1, however, contends inter alia, that in the plaint all material facts on which the plaintiff/opposite party No. 1 intends to rely his claim, have been stated and the plaintiff need not state the evidence in the plaint by which such material facts are to be proved, which the plaintiff must prove at the time of trial by leading evidence, oral and/or documentary, and it is the fundamental rule, that a pleading is to be read as a whole, and the intention of the parties is to be gathered primarily from the tenor and terms of pleading taken as a whole, or in otherwords, the court must look to the substance of the plaint, rather than its mere form.

In the case of Motilal Poddar (supra) Sir Ashutosh Mookerjee, J. held no doubt, that in the plaint, the plaintiff was bound to state the nature of the deed on which he relied in deducing his title from the person under whom he claimed, and to show the devolution of the estate to him, and Order VI Rule 2 of the CPC states that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party relies for his claim or defence, as the case may be in its subsequent decision in the case of Ganesh Trading Co. Vs. Moji Ram, The same court in its subsequent decision in the case of S.B. Noronah Vs. Prem Kumari Khanna, has further held inter alia, that pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleading are construed, law should not be stultified by courts by sanctifying little omission as fatal flaws. Parties win or lose on substantial questions, not on "technical tortures" and courts cannot be "abettors". The Supreme Court in the case of Smt. Manjushri Raha and Others Vs. B.L. Gupta and Others, has further held inter alia, that pleadings have to be interpreted not with formalistic rigour, but with latitude or awareness of low legal literacy of poor people. Reference may also be made to the decision of this Court in the case of Kissori Lal Nag and Others Vs. Tinkari Chandra Chandra, .

Lastly, it is also well settled, that even if a plea is not specifically made in the pleading, and yet it is (sic)by an issue by implication and the parties know that the said plea is (sic) then the mere fact that the plea was not expressly taken In (sic)pleading, would not necessarily disentitle the party from relying on it, if it is satisfactorily proved by evidence. Reference may be made to the decisions of the Supreme Court in Nagubai Ammal and others vs. B. Shama Rao and others. AIR 1950 SC 593 ; Bhagwati Prasad Vs. Shri Chandramaul, and Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, so far as this point is concerned.

In the present case, the plaintiff/opposite party No. 1 in the plaint has stated that he is the owner of the suit premises, and in support of such pleadings Exhibits 1 and 2 have been filed before the Court, and the parties knew that the Said plea was involved in the trial and accordingly, the mere fact, that the plaintiff had not disclosed the nature of the deeds on which he relied in deducing his title from his vendor, would not make the pleading a defective one as the said fact is to be proved by adducing evidence and evidence need not be pleaded in the plaint. Thus, I find no reason to interfere with the observations made by the trial court in the impugned order, u/s 115 of the Code of Civil Procedure, as the trial court''s order, in my view, does not suffer from any illegality caused by any material irregularity, or there has been an error committed by the trial court in exercising jurisdiction in passing the said order. The revisional application accordingly stands rejected without any order as to costs. Interim orders, if there be any, also stand vacated. The trial court is now directed to proceed with the suit and dispose of the same without any delay. Let xerox copies of the order be given to the learned Advocates for the parties, as prayed for, after complying with the necessary formalities.