Subhash vs Yash Pal

Ajay Kumar Mittal, J.—The tenant-petitioner is before this Court by way of instant revision petition filed u/s 15(5) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in short "the Act") for assailing the judgment dated 31.1.2002 passed by the Rent Controller which on appeal was affirmed by the appellate authority vide judgment dated 8.4.2005. The landlord-respondent by way of a petition u/s 13 of the Act sought ejectment of the tenant-petitioner from the demised premises on three counts:--

i) non-payment of rent from 1.5.1994 to 30.11.1997 @'' 600/- per month. It was claimed that a total amount of Rs. 25,800/- besides house tax was outstanding against the tenant;

ii) the tenant had materially impaired the value and utility of the premises in dispute as certain changes had been made without the permission of the landlord; and

iii) the premises were required for personal use of the landlord.

Upon notice of the ejectment petition, the tenant-petitioner filed written statement raising various preliminary objections. Besides admitting the relationship of the landlord and the tenant, the rate of rent was disputed. It was pleaded that the demised premises were rented out at the rate of Rs. 200/- per month including house tax. It was further pleaded that the rent for the period in dispute had already been paid but to avoid the ejectment order, the amount was again paid. The other averments were denied and a prayer for dismissal of the petition was made.

From the pleadings of the parties, the Rent Controller framed the following issues:--

i) Whether the respondent is liable to pay rent at the rate of Rs. 600/- per month as alleged in the petition? OPP

ii) Whether the respondent has materially impaired value and utility of the premises? OPP

iii) Whether the premises are required for personal necessity? OPP

iv) Whether the respondent paid arrears of rent tendered short? OPP

v) Whether the petitioner has filed the petition only to harass the respondent? OPP

vi) Whether the respondent is liable to pay excess amount as alleged in the petition? OPR

vii) Whether the petition is false and fabricated? OPR

viii) Whether the petitioner has no course of action to file the present petition? OPR

ix) Relief.

While adjudicating issues No. (i) and (iv) relating to arrears of rent, after appreciation of evidence led by the parties, the Rent Controller decided the said issues in favour of the tenant and against the landlord holding that the landlord had failed to prove that the rent of the house in dispute was Rs. 600/- per month and the same was outstanding. Adverting to issue No. (ii), the findings were returned against the landlord holding that the house in dispute had not been materially impaired by the tenant without the consent of the landlord. However, while deciding issue No. (iii) - "whether the premises are required for personal necessity", the Rent Controller came to the conclusion that the premises were required by the landlord bona fide and, thus, ordered the ejectment of the petitioner-tenant vide order dated 31.1.2002. The judgment of the Rent Controller dated 31.1.2002 was assailed by both the parties before the appellate authority. The appellate authority vide judgment dated 8.4.2005 upheld the findings recorded by the Rent Controller and dismissed the appeal. However, the cross appeal filed by the tenant-petitioner was not pressed before the appellate authority. Still feeling dissatisfied, the tenant is before this Court by way of present revision petition.

Learned counsel for the tenant-petitioner raised lone contention that in the absence of any specific pleading with regard to the requirements of Section 13(3)(a)(i) of the Act relating to the personal necessity in view of Full Bench judgment in Banke Ram Vs. Smt. Sarasti Devi, and Single Bench judgment in Joginder Singh Sawhney Vs. Harbans Lal, , the authorities below were in error in passing the order of ejectment.

On the other hand, learned counsel for the respondent supported the order passed by the appellate authority and submitted that the pleadings have to be read in totality and no party should be prejudiced in the absence of pleadings.

After hearing learned counsel for the parties and perusing the record, I find merit in the contention of the learned counsel for the petitioner.

Examining the legal position relating to effect of not pleading the ingredients embodied in Section 13(3)(a)(i) of the Act regarding personal necessity, it may be noticed that the Full Bench of this Court in Banke Ram''s case (supra) while dealing with the requirement of pleading the ingredients of sub clauses (b) and (c) of Section 13(3)(a)(i) under the East Punjab Urban Rent Restriction Act, 1949, held as under:--

Thus, it is clear from the above discussion that the predominant view of this Court has been that it is imperative for the landlord to plead the ingredients of Sub-clauses (b) and (c) of Section 13(3)(a). Even after the decision of the Division Bench of this Court in Krishan Lal Seth Vs. Pritam Kumari, to the contrary, Mahajan, J., (as he then was) one of the Judges on this Division Bench expressed a contrary view in Darshan Singh''s case ( 1974 Ren CR 99) (Punj) (supra). It is well established and salutary principle of law that in any civil proceeding, it is essential for a party to plead the ingredients of any facts in the pleading on which he wants to rely and in proof of which he may produce evidence. Order VI, Rule 2, Code of Civil procedure, specifically provides for the same. It is reproduced below:--

Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the parry pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.

Though all the provisions of the CPC are not applicable to the proceedings in applications for eviction under the Act, but the principles which are the basis and foundation for the administration of justice as the one incorporated in Order VI, Rule 2 of the Code of Civil Procedure, will be undoubtedly applicable to these proceedings also. The purpose in following the procedure for framing of issues in eviction applications is also intended to pinpoint the parties to the matter in controversy between them so that none of the parties may be taken by surprise and subsequently none of them may allege that he was in any way prejudiced. If there is no specific pleading about certain matter, the respondent would have no opportunity to controvert the same and consequently, no issue would be framed. In these circumstances, the parties will be in the dark as to whether to lead evidence in affirmation or in rebuttal and thus, some important matter in controversy may be overlooked deliberately or inadvertently. Even the Division Bench in Krishan Lal Seth''s case (supra), appreciated the weight of the principle of law and observed,-

It is generally incompetent for a tribunal to adjudicate upon any controversial matter which does not find place in the pleadings of the parties.

In AIR 1930 57 (Privy Council) , which is the basic judgment on the subject, it was held,-

Where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward.

The ratio of the decision in the above-said case was approved by their Lordships of the Supreme Court in Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861.

It was contended by the learned counsel for the respondent that the decision in Rajinder Singh Nanda''s case (supra) is based on the Full Bench decision of this Court in Sant Ram Das''s case (Supra) and that of the Supreme Court in Attar Singh''s case (supra) wherein it was not in controversy whether the ingredients of Sub-clauses (b) and (c) are required to be pleaded or not. It is true that in both these cases it was not specifically in controversy whether the ingredients of Sub-clauses (b) and (c) of Section 13(3)(a)(i) are essential to be pleaded by the landlord or not, but it was clearly and expressly held therein that it was essential to prove the ingredients of Sub clauses (b) and (c). Once it is so held, there is no escape from the proposition of law that these ingredients have to be pleaded before any evidence is led on the same. In Krishan Lal Seth''s case (supra), the Division Bench while agreeing with the principle that any matter in controversy must find piece in the pleadings of the parties, however, came to the conclusion that ingredients of Sub-clauses (b) and (c) may not be pleaded because they are only statutory conditions and the tenant is expected to have knowledge of the same and will not be taken by surprise. There can be no doubt that the conditions laid down in Sub-clauses (b) and (c) are statutory conditions inasmuch as they are provided by the statute, but to fulfil those conditions, the landlord must lead evidence to prove the facts constituting those conditions. Under Sub-clause (b) the landlord is required to prove that he is not occupying any other residential building in the urban area concerned. Under Sub-clause (c), it is incumbent on the landlord to bring on the record that such a building had not been vacated by him without sufficient cause. If the landlord is to satisfy those essential conditions, be must lay foundation regarding the same in his pleading so that the tenant-respondent is in a position to rebut the same and proper issues are also framed. It is difficult to visualise how a tenant will not be taken by surprise if there is no pleading in this regard. It may be a different matter if the statutory conditions are in relation to questions of law, but in case of statutory conditions pertaining to questions of fact, the landlord must make specific averments, otherwise, prejudice is very likely to ensue to the opposite party.

One of the main objects of the Act is to protect the tenant from the caprice and whim of the landlord to eject him without any valid and sufficient reason. It has been specifically provided u/s 13(1) that a tenant will not be ejected except in accordance with the conditions laid down in Sub-sections (2) and (3). The landlord has been injuncted from evicting the tenant even on the ground of the need of his own occupation unless two other conditions provided in Sub-clauses (b) and (c) are also fulfilled. The fulfilment of the conditions is a pre-requisite for any order of ejectment. If this objective is to be achieved, it is essential that both landlord and tenant must state all the facts specifically and expressly in their pleadings before they enter on evidence. In its absence, the proceedings will be a fertile source of objections that the tenant was taken by surprise because the landlord had not made specific averments in his pleadings and the objection by the landlord that the tenant had not raised specific objection in his reply. In a large number of cases, it has been seen that after a long time, the Appellate Authority or the High Court, are required to deal with the question whether amendment of the pleadings by the landlord should be allowed or not. This results in unnecessary prolonged litigation and avoidable burden of expenditure consequent thereto. Such a course is neither in the interest of the landlord nor the tenant. The interest of speedy justice makes it imperative that both the landlord and the tenant must be absolutely clear in their minds from their respective pleadings as to what case is required to be proved by the landlord and rebutted by the tenant. Viewed from any angle, there is no escape from the conclusion that the landlord must make specific averments in regard to the ingredients contained in Sub-clauses (b) and (c). In my considered opinion, the judgment of the Division Bench in Krishan Lal Seth Vs. Pritam Kumari, so far as it lays down that it is not necessary for the landlord to plead the ingredients of Sub-clauses (b) and (c) in the pleadings does not lay down good law and the same is reversed.

Following the aforesaid Full Bench judgment, this Court in Joginder Singh Sawhney''s case (supra) had recorded as under:--

I have thoughtfully considered the rival submissions made by learned counsel for the parties and after perusing the record I have reached the conclusion that the landlord-petitioner has miserably failed to make out a case for ejectment of the tenant respondent from the demised premises. The landlord petitioner has not even pleaded the basic ingredients in the application that he was not occupying another residential building in the concerned urban area and has not vacated such residential building. In para 2(iii) of the application filed u/s 13 of the Act, the landlord-petitioner has only mentioned a part of substantive facts as envisaged by Section 13(3)(a)(i) of the Act, namely, that he had not vacated such a residential building. He in fact concealed the facts.

Section 13(3)(a)(i) of the Act reads as under;-

Eviction of tenants.-

(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-

(a) in the case of a residential building, if,-

(i) he requires it for his own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of the 1949 Act in the said urban area;

(emphasis added)

XX XX XX XX

Provided further that where the landlord has obtained possession of a residential building or rented land under the provisions of Sub-clause (i) or Sub-clause (v) of Clause (a) or Clause (b), he shall not be entitled to apply again under the said provisions for the possession of any other building or rented land of the same class;

A perusal of the aforementioned section shows that in case of residential buildings ejectment could be sought by a landlord by claiming that he is not occupying any other residential building in the concerned area. There is not even an averment to this effect in the ejectment application. Therefore, the judgment of the Full Bench in the case of Sh. Banke Ram (supra) as well as Raman Mal (supra) an Joginder Pal''s case (supra) would squarely cover the controversy in favour of the tenant-respondent. Moreover, the findings of the Rent Controller as affirmed by the Appellate Authority are that the ground of personal necessity has not been proved by the landlord-petitioner. It has further been found that two tenants, namely, Bishan Dass and Gurbachan Singh have left the possession of the premises under his tenancy. Even Paramjit Singh son of the landlord petitioner had appeared and deposed that he was not yet married. Therefore, the concurrent findings of fact recorded by the courts below cannot be considered to be without evidence and the landlord-petitioner has miserably failed to prove his bona fide necessity of the demised premises.

From the above, it is concluded that the pleading of the ingredients enshrined in Section 13(3)(a)(i) seeking eviction on the ground of personal necessity are essential and mandatory. In the absence of the same, no order of ejectment can be validly passed.

Adverting to the factual matrix in the present case, the ejectment petition filed by the landlord may be scanned. A perusal thereof shows that there is only solitary averment in para 3(c) of the petition which is to the following effect:--

c. That the premises are required by the petitioner for his personal necessity.

In the remaining part of the pleadings or in the replication there is not even an iota of any averment that the landlord was not occupying another residential building in the urban area concerned and had not vacated such building without sufficient cause which are conspicuously missing. In view of what has been observed above, the revision petition is accepted and the orders dated 31.1.2002 passed by the Rent Controller and dated 8.4.2005 passed by the appellate authority are set aside and the eviction petition stands dismissed.