Mrs. Sharda Rani vs Malik Yashpal

Dua, J.—The appellant Mrs. Sharda Rani is the landlady of Kothi No. 14, Block No. 52, Ramjas Road, Prehlad Market, Karol Bagh, New Delhi and Malik Yash Pal is the tenant in a portion of the ground-floor consisting of three rooms, kitchens bath and water closet at monthly rent of Rs. 62. Mrs Sharda Rani approached the Controller under the Delhi Rent Control Act for eviction of the tenant on the grounds of non-payment of rent, of causing damage to the property and on the basis of personal bona fide requirement. The tenant is living in these premises since 1947. The rent having been deposited in accordance with law, the ground of non-payment of rent could not be sustained and the ground of damage having been caused to the property was also not pressed before the Rent Controller.

In reply, the tenant pleaded that the premises were not required by the landlady for the use of her family.

The question to be determined was thus considered by the Rent Controller to be whether the landlady and her husband Shri Laxmi Narain require the premises for their own use. It is observed in the order of the Controller that the petitioner and her husband live in the first and second floors of a rented house in bazar Sita Ram, the bath rooms and latrine are located on the second floor whereas the living rooms are on the first floor. Laxmi Narain is stated to be suffering from Rheumatic pains and gastric troubles as a result of which he had to remain in bed for about a month or so without break. Inconvenience in going to the second floor for the bath room and the latrine has been urged in support of the claim for ejectment. Mrs. Sharda Rani has also deposed that she is anaemic and suffering from asthma, both the husband and the wife have been advised by the doctor to live on the ground floor. On the evidence led on the record including the evidence of medical witnesses, the Rent Controller felt satisfied that the landlady and her husband required the premises for their own use. The tenant''s evidence was to the effect that the house was sought to be vacated for letting it out on higher rent. This evidence did not impress the Rent Controller, Holding that sufficient cause had been made out for an order of eviction, the Rent Controller on 22nd May, 1963 passed the necessary order for the recovery of possession of the premises in dispute in favour of the landlady against the tenant, making the order executable only after six months from its date.

An appeal was taken by the tenant to the learned Rent Control Tribunal who agreed with the conclusion of the Rent Controller on the merits but he allowed the appeal on another ground which does not appear to have been pressed before the Rent Controller. According to the Rent Control Tribunal, there was no proof on the file that Mrs Sharda Rani was the owner of the premises in dispute. The Tribunal observed that there was no allegation about her ownership in the ejectment application and her statement as well as that of her husband Laxmi Narain were silent on the point. The onus of proving positively this ingredient was on the landlady, and she having failed to prove it, the learned Tribunal felt that no order for eviction could be passed in her favour. The appeal was accordingly allowed and the petition for eviction dismissed.

On second appeal, the learned counsel for the appellant landlady has submitted that in the written statement, the tenant had not pleaded that Mrs. Sharda Rani, was not the owner of the premsies in dispute and that this point was now here urged before the Rent Controller. In the circumstances, so contends the counsel, the learned Tribunal had no jurisdiction to allow a new point to be raised which required plea and evidence. It has also been argued that in the application for eviction, it is expressly stated that Mrs. Sharda Rani is the landlady of the premises in question and Malik Yash Pal is the tenant; it is further asserted in it that the respondeat had damaged the property and made alterations without the consent of the landlady petitioner and that the property was bona fide required by the petitioner for her personal use and the use of her husband. In view of these pleas, the omission of any plea in defence in the written statement questioning the ownership of the landlady, it is contended, is of considerable importance and it is submitted that the learned Rent Tribunal acted illegally, if not also without jurisdiction, in permitting to be raised on appeal this new point of want of plea and proof of ownership in the landlady. It is of course emphasised that the plea of ownership is implicit in the petition and the hyper technical view of the pleadings on the part of the Tribunal is wholly unjustified.

My attention has also been drawn to Exhibit A. 10, a notice from Shri K.P. Shankara, counsel for the landlady, to Malik Yash Pal, wherein it is expressly stated that the premises are owned by this client. In the petition for ejectment also reliance has been placed on this notice in paragraph 18(b), and the landlady has in her statement on oath duly proved this notice.

Now the object of pleadings is to ascertain for the guidance of the parties and the Court the material facts in issue, with the result that pleadings are not to be too strictly, narrowly or pedantically construed. Where a document is referred to and relied on in the pleadings, the contents of that document might well be considered to constitute a part of the pleadings, and whan such document happens to be a notice given by the landlord to the tenant relating to the subject-matter of the controversy, there is a stronger reason for the contents of such document, to be deemed to form part of the pleading and the opposite party to be fixed with the knowledge of such contents being a part of his opponent''s case. In such circumstances, the opposite party can hardly be considered to have been taken by surprise and no question of unfairness to him; can possibly arise. Procedure, it must never be forgotten, is intended to subserve and not to govern the cause of justice; it is a hand-maid and not a mistress of Law. And then, Courts, are interested in, and indeed they exist essentially and primarily for promoting the cause of substantial justice between the parties; there is thus little reason why they should feel hidebound by matters which concern form and not substance.

In so far as the case before me is concerned, there is greater reason to treat Exhibit A. 10 as a part of the pleadings. In Form ''A'', found in the Appendix contained in the Delhi Rent Control Rules, 1959, framed u/s 56 of the Delhi Act (Act 59 of 1958), prescribed by Rule 3, for applications, inter alia, u/s 14, paragraph 18(b), expressly requires to be pleaded whether the required notice has been given and if so the particulars are to be stated, and a copy of the notice is also required to be furnished. This requirement was clearly complied with in paragraph 18 of the ejectment petition. The notice in the case in hand is thus for the greater reason to be considered to be included in the pleadings. On this view, failure or omission on the part of the tenant to plead that the landlady is not the owner and to question the competency of the petition for eviction on the ground of personal requirement and also omission to press and argue this aspect before the Controller assumes vital importance which, in fairness to the landlady, should not have been ignored. For the learned Tribunal to do so without any convincing suggestion that some one other than the landlady was the owner is not easy for me to appreciate. Indeed, the whole record is bare of any such suggestion, and the notice given to the tenant clearly contains the assertion of the landlady to be the owner.

Before me also it is no body''s case that the premises in dispute belong to some one else, and indeed there is no suggestion that some other person than Mrs. Sharda Rani is the true and real owner of the premises.

In view of what has just been stated, in my opinion it was wholly wrong on the part of the Tribunal to permit an entirely new case, not in his pleadings, to be made out by the tenant an appeal and also to ignore the pleadings and the notice attached to and relied upon in the eviction application which is in accordance with the rules, and the unexplained omission on the part of the tanant to raise in the written statement the plea of absence of Mrs. Sharda Rani''s ownership. In case the learned Tribunal felt inclined to allow this new plea of fact, it was only fair to permit the landlady to amend her petition and it is somewhat surprising that instead of adopting this course the learned Tribunal should have proceeded forthwith to dismiss the landlady''s petition without even adverting to the question whether some one other than the landlady was being seriously suggested to be the real owner. Had the tenant raised this plea in his written statement before the Controller, the landlady could easily have included the requisite express assertion in her application or pointed out that this plea is stated in her notice and is thus necessarily implied, or could even have prayed, if necessary, for suitable amendment of her petition. To accept the tenant''s appeal on this new point, to say the least, was unjust and unfair and amounted more or less to allowing premium to the tenant on his omission to raise the necessary plea at the proper time.

On appeal, ordinarily, in the absence of compelling reasons for promoting the cause of justice, new points on facts are not allowed to be raised, particularly when they are likely to prejudice the opponent, this I is all the more so when instead of advancing they serve to defeat the cause of substantial justice.

It is clear that there was no occasion, far less justification, for entertaining a new point on appeal, which depended on evidence. I have, therefore, little hesitation in disagreeing with the Tribunal in its reasoning for allowing the appeal. It has on the merits agreed with the Controller and this conclusion has not been assailed before me by the tenant.

For the foregoing reasons, this appeal succeeds and is hereby allowed, with the result that setting aside the order of the learned Tribunal I restore that of the learned Kent Controller and thus allow the petition for eviction directing the possession to delivered forthwith to the landlord. The order must be executed without undue delay. The appellant is entitled to her costs throughout.