Onkar Nath vs Ved Vyas

T.U. Mehta, J.—The main questions which are involved in this revision petition are:

Whether in a suit for eviction brought under the East Punjab Urban Rent Restriction Act, 1949, the Plaintiff-landlord should make specific allegation in the plaint with regard to Clauses (b) and (c) of Sub-section (3)(a)(i) of Section 13 of the Act; and

if such specific allegations are not made by the Plaintiff in the plaint what would be the legal consequences in case even the Defendant-tenant fails to raise any plea either in his written statement or during the course of the trial with regard to the said failure of the Plaintiff to make allegations with reference to the above referred Clauses (b) and (c).

The parties have also agitated in this revision petition the question whether the Respondent-landlord has been able to prove satisfactorily his bona fide requirement of the suit premises.

Short facts of the case are that the suit premises were purchased by one Gurcharan Singh on 31-8-1965 for the amount of Rs. 13,100/- from the Custodian of evacuee''s property in auction. The said Gurcharan Singh thereafter within a few months transferred this property to the Respondent-landlord for the consideration of Rs. 1,310/- only. This is how the Respondent became the owner of this property. It is an admitted position that when Gurcharan Singh purchased this property the Petitioner-tenant was already occupying the same as a tenant paying monthly rent of Rs. 5/-. The Petitioner thus became the tenant of the Respondent-landlord when the latter purchased this property from Gurcharan Singh in the month of June, 1966.

The property is situated at Chamba which was at the relevant time governed by the provisions of the East Punjab Urban Rent Restriction Act, 1949. The Respondent is occupying rented premises at Chamba. He eventually filed a petition for eviction against the Petitioner before the Rent Controller u/s 13 of the Act in the year 1966 on the ground of personal requirement. This ground is covered by Sub-Section 3(a)(i) of Section 13 the relevant portion of which is in the following terms:

"3. (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:

(i) in case of a residential building, if:

(a) he requires it for his own occupation ;

(b) he is not occupying any other residential building in the urban area concerned; and

(c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area;".

Remaining portion of Sub-section (3)(a)(i) is not material for our purpose.

It is an admitted position that in the plaint filed by the Respondent landlord he has not made any averments with regard to above said Clauses (b) and (c) about the requirement of his self-occupation of the disputed premises. The Petitioner tenant filed his written statement, but in this written statement he has not raised any plea with regard to the sufficiency or otherwise of the allegations contained in the plaint about the Respondent-landlord''s personal requirement. Even during the course of the trial the Petitioner tenant has not raised any contention to the effect that the plaint filed by the Respondent-landlord was lacking in any material particulars with regad to the above quoted Clauses (b) and (c).

At the end of the trial, the learned Rent Controller passed the order of eviction in favour of the Respondent-landlord. Against this order the Petitioner tenant preferred an appeal, and during the course of the hearing of this appeal he seems to have urged before the learned appellate Judge that the Respondent-landord has neither pleaded nor proved the requirement of Clause (c), according to which the landlord seeking eviction on personal requirement is expected to prove that he has not vacated such a building without sufficient cause after the commencement of the Act in the urban area concerned, and, therefore, the Respondent''s petition for eviction was liable to be dismissed. The learned appellate Judge dismissed this contention by observing that, in his view, the above referred Clause (c) has to be pleaded and proved only if the landlord''s case is that he is not occupying any other residential building in the concerned area. The learned Appellate Judge has further observed that if the case of the landlord is that he is living in any other rented building which is not sufficient for his needs, Clause (c) would not be attracted. The learned Appellate Judge has further confirmed the finding of the Rent Controller that the Respondent-landlord has proved his bonafide personal requirement of the suit premises because he has not been able to accommodate his family in the rented premises which are already in his possession. Thus the eviction order passed by the learned Rent Controller has been confirmed even by the appellate Judge. Being aggrieved by this order the tenant has now preferred this revision.

Shri Sood, the learned Advocate of the Petitioner-tenant, has contended that in view of the decision given by the Full Bench of the High Court of Punjab and Hariyana in Banke Ram v. Sarasti Devi 1977 Cur. L.J. 71, it was obligatory on the Respondent landlord to plead the ingredients of Sub-clauses (b) and (c) of Sub-Section 3(a)(i) of Section 13 of the Act, and since in this case the Respondent-landlord has not done so, a serious prejudice is caused to the Petitioner tenant and, therefore, either the suit should be dismissed or the Respondent landlord should be given an opportunity to amend his plaint and the matter should be remanded back to the Rent Controller to dispose it of according to law. Shri Sood has also challenged the propriety of the findings of both the lower authorities on the question of personal requirements of the Respondent-landlord.

The first question which arises to be determined is whether, looking to the provisions contained in Sub-Section 3(a)(i) of Section 13 of the Act, it is essential for a landlord who claims eviction on the ground of personal requirement to plead the ingredients of Clauses (b) and (c) in the plaint or not. Now so far as this question is concerned, there has been a lot of controversy resulting in different judicial pronouncements before the above referred Full Bench decision of the Punjab and Haryana High Court in Banke Ram v. Sarasti Devi (supra). Before this decision was given, the field was held by the decision given by a Division Bench of the Punjab High Court in Krishan Lal v. Pritam Kumari reported in 1971 P.L.R. 865 wherein the High Court held that Clauses (b) and (c) of Section 13(3)(a)(i) were statutory conditions for eviction on personal grounds and though these statutory conditions were required to be established by the landlord, it was not necessary to repeat these statutory conditions in the pleadings, and, therefore, the suit could not fail for want of the ingredients regarding Clauses (b) and (c) in the plaint. Thereafter various decisions were given by different learned Judges of the Punjab High Court. It is not necessary to refer to all these decisions because they have been ultimately considered, and the controversy is set at rest, so far as the Punjab and Haryana High Court is concerned, by a Full Bench in the above referred decision of Banke Ram v. Sarasti Devi (supra). So far as this Court is concerned, however, the question came to be considered in Puran Chand v. Jagdish Lal reported in ILR (1974) Him. 309 by a Division Bench of this Court constituted by Hon''ble the Chief Justice and Hon''ble Mr. Justice D.B. Lal. Both the learned Judges have given separate judgments, and so far as this particular point is concerned, it has been specifically discussed only by D.B. Lal J. If we refer to the judgment of D.B. Lal, J. it will be found that he was of the opinion that in that case the plea regarding Clauses (b) and (e) of Section 13(3)(i) was substantially there in the pleadings. This will be clear from the following observations made by him in his judgment:

"To meet this argument, it may be stated at the outset that para (4) of the petition gave the following narration:

(4) That the Petitioners do not own any other premises, nor they have vacated or rented any other premises within the limits of municipal limits of Solan.

The plea contained in the aforesaid para (4) decidedly embraced, substantially, conditions (b) and (c), although the narration was not made with that much exactitude and precision which was needed. Apart from this both the parties knew very well as to what points were at issue between them and none was prejudiced, because they were afforded ample opportunity, to meet such, points of dispute. The parties led evidence with pointed reference to conditions (a), (b) and (c) and the authorities, below did decide these issues on merit between them.

Having said this, the learned Judge also proceeded to consider the legal position and, relying principally on the decision given by a Division Bench of the Punjab High Court in the above referred case of(supra), he decided that it was not necessary to state ingredients of Clauses (b) and (c) in the plaint filed by the landlord who wanted eviction of the tenant on the ground of personal requirement. Another Judge constituting the Bench who was Hon''ble the Chief Justice has not discussed the legel position on this point, but has disposed it of by making the following observations:

"Even assuming that the Respondents omitted to include a pleading in terms of Clause (b), the record before us discloses, that the Petitioner cannot be said to have been taken by surprise or prejudiced in any manner because of such omission. The parties were aware of the nature and extent of the controversy between them and that it is apparent from the evidence adduced respectively by them. The contention has no force and must be rejected.

It is thus apparent that the observations made by Mr. Justice Lal about the legal position of this question are not the observations of the Bench itself, and so far as the observations of Mr. Justice , Lal are concerned they were more or less obiter dicta inasmuch as on facts he was of the opinion that the Plaintiff landlord in that case had substantially pleaded the ingredients of Clauses (b) and (c) in the plaint filed by him. Under the circumstances, the legal view taken by Mr. Justice Lal on the question involved based on the decision in Krishan Lal v. Pritam Kumari (supra), which is now over ruled by the Full Bench of the same High Court, is not binding on me. In other words, the matter is still res integra and can be decided as such.

I find that the question whether a landlord who wants to seek eviction of his tenant on the ground of personal requirement of a residential building under Sub-section (3) of Section 13 of the Act should specifically plead the ingredients of Clauses (b) and (c), should be determined with reference to the relevant provisions of the Code of Civil Procedure. It is true that strictly speaking, the provisions of the CPC are not applicable to rent petitions under the Act, but it is by now well established that unless there is anything contrary in the special enactment, the Rent Controller is expected to follow the provisions of the CPC so far as the procedure is concerned. Therefore, if we decide this question by reference to the provisions of the Code of Civil Procedure, we find that it would be Order 6 which would govern the question. Order 6 is with regard to pleadings generally and Rule 2 thereof says that every pleading shall contain, and contain only, a statement in concise form of the material facts on which the parties in the pleadings rely for their claim or defense as the case may be. Thus according to Rule 2 what the Plaintiff is expected to plead in such cases is only the material facts on which the cause of action is based. In other words, he should plead all the material facts constituting the cause of action in his favour. Material facts relating to a cause of action are those facts in absence of which the Plaintiff cannot obtain a decree. Therefore, if the facts relating to Clauses (b) and (c) are found to be the material facts which are necessary ingredients of the cause of action in question then these facts must be pleaded by the landlord who seeks eviction of his tenant from the residential premises on the ground of personal requirement.

However, if Clauses (b) and (c) are found to be not the facts constituting a cause of action but the facts constituting conditions precedent for obtaining a decree on the ground of personal requirement, then it would be Rule 6 of Order 6 which would be coming into play. According to this Rule 6, any condition precedent the performance and occurrence of which is intended to be contested shall be distinctly specified in his pleadings by the Plaintiff or the Defendant as the case may be, and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary in the case of the Plaintiff or the Defendant shall be implied in his pleadings. The meaning of this Rule 6 in other words is that it is not necessary for a party to plead expressly the performance of a condition precedent. Such a condition precedent would under Rule 6 be implied in his pleadings, but if the other party wants to contend that there was a condition precedent and that it has not been duly performed, then it is for that other party to say what that condition was, and he should also plead that the condition in question was not performed.

In view of this position of law, the first question which arises to be considered is whether Clauses (b) and (c) of Section 13(3)(a)(i) operate as a condition precedent for the cause of action or not. If the facts relating to these two clauses are construed to be conditions precedent then it would be for the tenant to raise a plea that these conditions precedent are not performed by the landlord, and so long as he does not raise this plea the performance of these conditions precedent should be implied in the pleadings. However, if the facts relating to Clauses (b) and (c) do not operate as conditions precedent, but are construed as material facts relating to the cause of auction itself, then these material facts must be pleaded in the plaint.

If a reference is made to the provisions contained in Section 13(3)(a)(i) , it will be found that it stipulates the requirement of the rented premises for the landlord''s own use and occupation. Clauses (b) and (c) are enacted by way of tests of these requirements because according to Clause (b) if a landlord is occupying any other residential building in the urban area concerned, and if such other residential building is quite suitable for his purpose as held by several decisions, then it will follow that he does not require the disputed premise for his personal use. Similar are the requirements even of Clause (c) because the effect of Clause (c) is that if the landlord has vacated a building such as the disputed building without sufficient cause in the same urban area after the commencement of the Act, then it cannot be said that he requires the disputed premises for his personal use. It is thus evident that Clauses (b) and (c) form an integral part of Clause (a) and in order to determine whether there is a bona fide personal requirement of the landlord, we have to read all the three clauses conjointly together as was done by the Supreme Court hr Attar Singh Vs. Inder Kumar, with regard to similar provisions contained in Section 13(3)(a)(ii) of the Act. In my opinion, therefore, Clauses (b) and (c) form an integral part of the whole cause of action arising from personal requirement of a landlord, and if that be so, it must follow as a necessary corollary that all the facts relating to Clauses (b) and (c) are material facts relating to the cause of action and they should be pleaded in the plaint as required by Rule 2 of Order 6 of the Code of Civil Procedure.

The Full Bench of the Punjab High Court has held in the above referred case of Banke Lal v. Sarasti Devi that it is necessary to allege the ingredients of Clauses (b) and (c) in the plaint if a landlord wants the eviction from residential premises on the ground of his personal requirement.

In view of my above finding I do not think it necessary to refer to various other decisions cited at the bar by the learned Advocate of the Petitioner on this point. Now, if we look to the facts of this case it is not in dispute that the Respondent Plaintiff has not made any averment as regards the facts relating to Clause (c) in the plaint filed by him. The next question which, therefore, arises to be considered is what is its effect. Here the contention of the Petitioner was that if the Plaintiff is not found to have made any allegation in the plaint as regards Clause (c), his suit is basically defective and the Court of the Rent Controller would not have any jurisdiction to try the matter for the purpose of eviction of the tenant. In other words it was contended by the learned Advocate of the Petitioner that the facts relating to Clause (c) were jurisdictional facts and for want of these jurisdictional facts the Rent Controller did not get any jurisdiction to decide the matter against the tenant. He further pointed out in the alternative that if the Court is of the opinion that the parties should not be thrown to any other long term litigation in view of the fact that even the Petitioner tenant had not raised any plea in his written statement with regard to this defect in the plaint, the Respondent landlord may be given an opportunity to amend his plaint as is done in various cases by the High Court of Punjab.

The question which, therefore, arises to be considered is What are the legal consequences of the Plaintiff not alleging material facts relating to his cause of action when even the Defendant does not raise any plea as regards this defect in the plaint. In my opinion, even this question is required to be resolved with reference to the relevant provisions of the CPC Code. But before taking up these relevant provisions of the Code I would like to note that it is not correct to contend that the want of an allegation as regards material facts relating to cause of action in the plaint divests the authority concerned of the jurisdiction to decide the matter. The jurisdiction of the concerned authority would obviously not depend upon the capacity of a party or his advocate to plead necessary facts in the pleadings.

The CPC contains enough provisions to compel a particular Plaintiff in a given case to disclose facts necessary to be pleaded in the plaint. These provisions are again found in Order 6. It should be noted that according to Rule 4 of Order 6 a Plaintiff is statutorily required to state the particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence which is pleaded in the plaint, and says that whenever these things are pleaded in the plaint, particulars with dates and items should be stated in the pleadings. Rule 4 is not exhaustive in giving the list of matters in which the particulars should be stated because it says that such particulars should be given even in all other cases in which these particulars are necessary. Therefore, the present case would fall under this general clause because, as already held by me above, when a landlord wants the eviction of his tenant on the ground of personal requirement it becomes a matter in which particulars as regards Clauses (b) and (c) would be necessary. Therefore, it is Rule 4 of Order 6 which would govern the facts of such cases.

Now let us see what Order 6 stipulates when a Plaintiff who is required to give particulars under Rule 4 does not do so. The remedy in such a case is provided by Rule 5 of this Order. This says that a further and better statement of the nature of the claim or defence or further and better particulars of any other matter stated in the pleadings may in all cases be ordered upon such terms and costs and otherwise as may be just.

It would, therefore, follow that if a landlord, who wants to seek the eviction of his tenant of the residential premises on the ground of personal requirement, fails to give necessary particulars of his cause of action in the plaint, he can be compelled under Rule 5 to give these particulars. This compulsion can be availed of by the Defendant tenant. But the question is what would happen if the Defendant tenant does not prefer to avail of the provisions of Rule 5 and silently proceeds with the trial, allows the trial to be concluded, and raises the technical objection about the want of particulars in the plaint at an appellate stage after he finds that the trial Court''s decision has gone against him. Here we find several decisions on similar facts going to show that if a party having a right to apply for particulars does not do so in the trial Court, he cannot complain the want of particulars in the appelate Court for, his failure to apply under Rule 5 operates as an estoppel. Such a view was taken by Patna High Court in an earlier case of Prem Singh v. Ram Bhujawan reported in AIR 1920 Pat. 678 . In Ananta Lal Sarkhel Vs. Soudamini Guha and Others, the Calcutta High Court held that where a general allegation of fraud is made which the Defendant is not in a position to meet, he ought to demand further particulars from the Plaintiff and if he did not do so, he cannot be heard to say afterwards that under the general allegation of fraud evidence was given of the nature which took the defence by surprise. In K.C. Dev. Hira Bewa reported in AIR 1937 Cal. 5l the same High Court has held that it is not open to the Defendant to make a grievance of any vagueness in Plaintiff''s pleadings at an appellate stage because if he so desired it was open to him to apply for further and better particulars under Order 6 Rule 5.

I find that practically the same view is taken by Chinnappa Reddy J. of the High Court of Punjab and Haryana in a case following exactly the same question. This is a case of Kesho Ram v. Jagir Singh reported in 1977 RLR 758. Refering to the Full Bench decision of that High Court given in Banke Ram''s case the learned Judge observed that though in that case the Full Bench has held that it was necessary for the landlord to plead the ingredients of Sub-clauses (b) and (c) of Section 13(3)(a)(i) as much as the ingredients of Sub-clause (a), the Bench did not lay down that failure to plead ingredients of Sub-clauses (b) and (c) must necessarily result in dismissal of the petition for ejectment. The learned Judge has further observed that the ingredients of Sub-clauses (b) and (c) are not magic formula or which if not recited must necessarily entail dismissal of the petition. Further, according to the learned Judge, in a case where a landlord goes before a Rent Controller with an application for ejectment u/s 13(3)(a)(i) and alleges that he requires the building for his own occupation but fails to allege the ingredients of Clauses (b) and (c), it is open to the tenant to plead the failure of the landlord to allege the ingredients of Clauses (b) and (c), it is further open to the tenant to plead that the landlord was occupying any other residential building in the urban area concerned, or that he had vacated such a building without sufficient cause. If he does not raise any of these objections, says the learned Judge, and if he is competent to join issues on the question of the requirement of the landlord of the building for his own occupation, can he be permitted after losing the application before the Rent Controller to come before the appellate Court or the revisional Court to contend that the ingredients of Clauses (b) and (c) were not averred in the plaint,? The learned Judge answered the question raised by him in the negative.

In view of this position of law I am of the opinion that though it was necessary for the Respondent-landlord to make allegation as regards the facts relating to Clauses (b) and (c)\\n his plaint, his failure to do so does not result in the dismissal of the suit, nor does it call for any fresh amendment of the plaint which in fact amounts to requiring him to furnish the particulars of the material facts at this stage, because the Petitioner tenant has not raised any plea with regard to this defect in the plaint at any stage during the course of the trial. The fact that he raised this plea before the appellate authority without any objection by the other side does not help him, because he was not entitled I to raise that plea even before the appellate Judge.

So far as the question of personal requirement of the Respondent-landlord is concerned, it is purely a question of fact which both the lower authorities are found to have decided properly. The rented premises in which the Respondent-landlord resides contain two rooms on the ground floor and one room on the first floor which is used as a kitchen and dining hall. On the ground floor there is a dalan as between the two rooms. It is undoubtedly spacy but is not covered on all the sides and is used for sitting purposes. In the family of the Respondent there are three sons who by this time must have been sufficiently aged. It is stated that all of them are married but there is no evidence as regards that. Evidence shows that when the petition was instituted the Respondent had four daughters and two aged parents. These parents have unfortunately died and three daughters are married, but even considering these facts it is obvious that the accommodation in possession of the Respondent landlord is not sufficient to satisfy his needs. The disputed premises are on the contrary found to be sufficient for his needs and, therefore, I find that the conclusions arrived at by both the lower authorities on the question of personal requirement of the Respondent are proper.

Shri Sood, the learned Advocate of the Petitioner, contended that even if it is believed that for want of necessary pleadings in the plaint the suit should not be dismissed or the matter should not be remanded after the necessary amendment of the plaint, the fact remains that there is no evidence adduced by the Plaintiff to show that he has not vacated a building such as the disputed building without sufficient cause in the same urban area. It is true that the Respondent Plaintiff has not offered any evidence on this point. But since no such plea was raised by the Defendant tenant, there was no issue, and if there was no issue none of the parties could be expected to lead any evidence on that non-existing issue. The want of any pleading on the part of the tenant, which pleading he could have legitimately raised, would amount to his admission that Clause (c) did not come into the picture at all. The Plaintiff was not expected to lead evidence in vacuum even though the other side did not prefer to throw any challenge on the ground of Clause (c) and did not join an issue on that clause. Therefore, I see no substance even in this contention.

The result, therefore, is that this revision should fail and the order of eviction passed by the lower authorities must be confirmed. However, considering the fact that the Petitioner-tenant is residing in the disputed premises since last many years, and would necessarily require some time to obtain premises suitable to his need, I find that it would be proper to give him some time to vacate the premises. It is, therefore, ordered that the Petitioner shall handover the vacant and peaceful possession of the disputed premises to the Respondent-landlord by the end of September, 1978. If he fails in doing so, he will be liable to be evicted by legal process. This revision application is accordingly dismissed with the above modification and the rule is accordingly discharged with costs.

Petition dismissed.