1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. Govind Prasad & ors. vs. Vijay Singh & ors. S.B. Civil Second Appeal No.224/2002 against the judgment and decree dated 7.8.2002 passed by the learned Addl. District Judge, Rajgarh(Churu) in Civil Appeal No.14/98. Date of Judgment: June 01, 2006. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr. Om Mehta, for the appellants. Mr. M.C. Bhoot,for the respondents. REPORTABLE BY THE COURT: This appeal by the defendant tenant, is against the judgment and decree passed by the first appellate court dated 7.8.2002 by which the first appellate court reversed the judgment and decree of the trial court dated 5.5.1998, Brief facts of the case are that the appellant-defendant's ancestor Bashesar Lal was tenant in the suit shop. The tenancy was annual. The plaintiff-Jaichand Lal-landlord filed the suit for eviction of said tenant Bashesar Lal on various grounds, like default in payment rent, sub- 2 letting, material alteration and causing damages to the property by the tenant. Original tenant Bashesar Lal died on 9.10.1986, therefore, said Bashesar Lal's heirs were impleaded as party defendants in the suit. After trial, the suit of the plaintiff was dismissed by the trial court by judgment and decree dated 5.5.1998, against which regular first appeal was preferred by the plaintiff-landlord. The first appellate court decreed the suit of the plaintiff on the ground of sub-letting and material alteration. Hence this second appeal. Before this, the matter came up before this Court in second appeal, the plaintiff and defendant nos.3 and 4 died and their legal representatives were taken on record. According to the learned counsel for the appellant the basic facts which are required to be pleaded to prove the case of sub-letting, have not been pleaded by the plaintiff in his plaint and this Court as well as Hon'ble the Apex Court in number of cases held that the pleading must be clear and must convey its meaning to defendant so that the defendant may contest the suit and for that purpose, he must know what are the allegations against him. It is also submitted that even sub- clause (e) of sub-section (1) of Section of the Rajasthan Premises (Control of Rent and Eviction ) Act, 1950 (for short 'the Act of 1950') itself provides that the landlord can seek eviction of his tenant only in case when the suit property is sub-let by the tenant “without the permission of the landlord.” The learned counsel for the appellant 3 heavily relied upon the provisions of Section 108(B)(j) of the Transfer of Property Act,1882 and submitted that sub-letting is permissible under law and because of sub-clause (e) of sub-section (1) of Section 13 of the Act of 1950 only, the landlord's permission is required for sub-letting of the rented premises. Sub-clause (j) of Clause (B) of Section 108 of the Transfer of Property Act specifically gives right to lessee to sub-lease the whole or any part of his interest in the leased property. Therefore, unless the fact constituting cause of action that the suit premises has been let out “without permission of the landlord”, the suit is liable to be dismissed for non-disclosure of cause of action. The learned counsel for the appellant in support of need of strict pleading, relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah and anr.(1987(1) RCR 186(SC)) and earlier judgment of this Court delivered in the case of Phool Chand & another v. Dr. Gulab Chand ( 1999(3) WLC 189) wherein the landlord did not plead about “non-tendering of rent to the landlord” and the court held that the suit is not maintainable for want of proper pleading for maintaining the suit for eviction of the tenant on the ground of default. The learned counsel for the appellant also relied upon the judgment of the Hon'ble Apex Court delivered in the case of Udhav Singh v. Madhav Rao Scindia (AIR 1976 SC 744) wherein Hon'ble the Apex Court held that all material facts are required to be 4 pleaded and if necessary facts are not pleaded, the suit can be dismissed on this ground alone and the same view was taken in the judgment of the Hon'ble Apex Court delivered in the case of Harkirat Singh v. Amarinder Singh( 2006 AIR SCW page 4. In the same sequence, the learned counsel for the appellant relied upon one more earlier judgment of the Hon'ble Apex Court reported in the case of Hasmat Rai and another v. Raghunath Prasad ( AIR 1981 SC 1711). Next it was contented that when there was no pleading constituting cause of action, no evidence in support of the plea of sub- letting could have been considered by the courts below. It is also submitted that the documentary evidence produced by the plaintiff in the form of photographs (Exs.35, 36, 37 and 38) were wrongly relied upon by the courts below. Not only this but the said evidence, on the face of it, is unreliable and is not of the suit property. The timing on which the photographs were taken makes it clear that these documents are result of trick photography only. It is also submitted that even the plaintiff's own and his witnesses' evidence itself fully proved that these photographs are not of the property in dispute and these photographs were not taken at the time as projected by the plaintiffs. The learned counsel for the appellant submitted that even the plaintiffs' evidence in relation to the photographs (Exs.37 and 38) are that they were taken at the same time whereas Ex.37 is coloured photograph and Ex.38 is black 5 and white photographs. There cannot be two photographs from one camera, one coloured photograph and another black and white photograph. Even if there were two separate cameras then there is no evidence of the plaintiffs that the photographs were taken by two different cameras. It is also submitted that Ex.36 is a photograph of one very small piece of wall and this photograph clearly shows that the plaintiffs produced the photograph deliberately suppressing material facts in the photograph so that he can use the photograph of any other property. It is also submitted that the defendant was not confronted with these photographs when defendant gave his statement in the trial court. The defendant in his statement clearly stated that he never sub-let the suit property. The courts below relied upon, particularly the first appellate court relied upon Ex.38 where the board of Hind Tailor has been shown which according to the plaintiffs was of the sub-lettee whereas this photograph is also not of the property in dispute. The evidence which has not been brought to the knowledge and notice of the defendant and the documents which have not been confronted, cannot be used against the defendant. For this the learned counsel for the appellant relied upon the judgment of the Calcutta High Court delivered in the case of A.E.G. Carapiet vs. A.Y. Derderian ( AIR 1961 Cal. 359) and the judgment of the Hon'ble Apex Court delivered in the 6 case Rajinder Prashad(dead) by L.Rs. vs.Smt. Darshana Devi ( AIR 2001 SCW 3042) and Sarwan Singh vs. State of Punjab (2002 AIR SCW 4295). Next it was also contended that for sub-letting it is required to be proved that the tenant in chief has parted with possession of whole of the leased property or the part of the leased property and gave exclusive possession to the sub-tenant with a right to the sub-lettee to exclude the tenant in chief. Without this exclusive possession of the third person, there cannot be sub-tenancy and the sub-letting by the tenant in chief. The learned counsel for the appellants relied upon the judgments of the Hon'ble Apex Court delivered in the case of Dev Kumar (Died) through LRs. vs. Smt. Swaran Lata and others ( AIR 1996 SC 510) and Resham Singh v. Raghbir Singh and another ( AIR 1999 SCW 3029). The learned counsel for the appellants in addition to above relied upon the judgments of this court delivered in the cases of State of Rajasthan v. M/s. Bundi Electric Supply Co. Ltd.( AIR 1970 Raj. 36), Girdhar Singh and another v. Anand Singh and others(AIR 1982 Raj.229) and Smt. Bhani v. Mahaveer Prasad (1997 DNJ (Raj.) 151) and the judgments delivered in the cases of Milkiat Singh & anr. vs. Jogindrer Singh & ors. ( 1998 DNJ SC 47) and Durga Prasad v. Mst. Praveen & ors. (AIR 1975 MP 196). The learned counsel for the appellants further submitted that the finding of the first appellate court on issue of material alteration is 7 contrary to settled law because of the simple reason that firstly there is no evidence that the plaintiffs materially altered the suit premises in any manner, secondly because of the reason that even if it is held that the defendant altered the suit premises as alleged by the plaintiff even then it has not diminished the value of the suit property and thirdly the alleged act is of such nature which do not constitute material alteration. The learned counsel for the respondents submitted that the pleadings are required to be sufficient enough to convey the defendant what are the allegations against him so that he may rebut the allegations of the plaintiff. On the basis of the pleadings, issues were framed, which also makes the case clear of one party to another party. The issues for which burden to prove is placed upon the plaintiffs makes the defendant aware about the controversy. In this case the issues are clearly understood by both the parties and both the parties led their evidence and cross-examined each other and other witnesses thoroughly on all the grounds for eviction of tenant which are the grounds for eviction of tenant under the Act of 1950. No plea of lack of pleading or non-framing of the issue by the trial court can be entertained in second appeal. In this case, the plaintiff pleaded that the suit shop has been sub-let by the plaintiff to the sub-lettees. The plaintiff filed the suit for eviction on this ground knowing it well that in case tenant sub-let the 8 suit property without permission of the landlord, the landlord is entitled to decree under sub-clause (e) of sub-section (1) of Section 13 of the Act of 1950. The defendant also contested the suit knowing it well that the plaintiff filed the suit for eviction of the defendant on the ground of sub-letting. The defendant cannot be heard to say that he was not knowing the law, particularly sub-clause (e) of sub-section (1) of Section 13 of the Act of 1950. It is also submitted that the contention of the learned counsel for appellant that sub-clause (j) of clause (B) of Section 108 of the Transfer of Property Act allows creation of said lease and sub- letting clearly demonstrates that the tenant wants to submit that he was fully aware of the law so far as sub-clause (j) of clause (B) of Section 108 of the Transfer of Property Act is concerned, which gave the lease right to sub-let but he could not understand from pleading which sub-letting is not permissible despite the fact that it is not the case of the defendant that he, if sub-let the suit premises, he did so as he has right to do so by virtue of Section 108(B)(j) of the Transfer of Property Act. It is also submitted that the trial court framed issue specifically after hearing the defendant-tenant about allegation of sub-letting. The trial court specifically framed issue no.3 to the effect that whether defendant no.1 to 8 sub-let part of the suit premises to defendant no.3 on rent of Rs.150/- per month “without the consent of the landlord”. 9 The defendant led evidence on this issue as well as cross-examined the plaintiff on this issue, therefore, the defendant cannot raise objection about lack of pleading. It is also submitted that according to plaintiff- respondent, it is not case of even lack of pleading and once a suit is filed stating therein that the plaintiff is seeking decree on the ground of sub-letting and that ground is under sub-section (e) of sub-section (1) of Section 13 of the Act of 1950, it cannot be read bereft of sub-clause (e) of sub-section (1) of Section 13 of the Act of 1950 and cannot be read along with only sub-clause (j) of clause (B) of Section 108 of the Transfer of Property Act. Learned counsel for the respondent further submitted that so far as evidence is concerned, the first appellate court has considered each and every piece of evidence including the documentary evidence and thereafter recorded the finding of fact. It is also submitted that the first appellate court since has decided the question of fact on the basis of the evidence and according to the learned counsel for the respondents, this Court cannot and should not interfere in such finding of fact. It is also submitted that Hon'ble Apex Court in number of cases held that even erroneous finding of fact cannot be interfered unless it is vitiated for the reasons enumerated in the judgments of the Hon'ble Apex Court. It is not a case of non-consideration of any evidence, oral or documentary. Therefore, the finding of fact is binding. 10 It is also submitted that even from the record it is proved that the plaintiff's sign-board is clearly visible in the photograph over which the sub-lettee's sign-board is also clearly visible. The photograph is taken in a small town where more advance cameras were not available and it appears that if photograph of entire building would have been taken, it might not have given clear picture of the sign-boards of the plaintiff and his sub-lettee. The plaintiff produced photographs and the negatives of the photographs. The plaintiff stated on oath that these photographs are of the property in dispute and were taken by the photographer. There may be contradictions in timings and the manner in which the photographs were taken but still the photographs remain as it is. It is immaterial when these photographs were taken. The photographs were proved by the person who took the photographs and who took the photographs at the instance of the plaintiff. There is no dispute about admissibility of the evidence. So far as confrontation of these documents with the defendant is concerned, it is true that the counsel conducting the case on behalf of the plaintiff has not put any specific question after showing the photographs to the defendant but that technicality of law also cannot come in the way of the plaintiff because the photos are the documents which were taken by third person and in that process, defendants were not involved. The photos were admitted in evidence and became part of the record and evidence, therefore, 11 even if defendants were not confronted with photos, still the photos are evidence and if evidence is trustworthy, it can be relied upon. DW-1, in his cross-examination at page 5 stated that he never saw the board “Hind Tailor” on the shop in dispute twice, still he did not state that photographs which has been admitted and became part of the evidence are not photographs taken of the building in dispute by pointing out that Exs.35, 36, 37 and 38 are not photographs of his shop. It is also submitted that there is oral evidence in support of the plea of sub-letting which were considered by the first appellate court in detail whereas the trial court proceeded on presumption only. The critical analysis of the evidence is to find out the truth and not to discard the evidence which is having element of truth in it. The learned counsel for the respondents also submitted that the learned counsel for the appellants tried to read all the evidence documentary as well as oral only for the purpose of its re-appreciation by this Court in second appeal and it is not a case where any of the evidence has not been considered by the first appellate court or has been mis-read by the first appellate court for reversing the judgment of the trial court. The learned counsel for the respondents vehemently submitted that the material alteration depends upon the facts of each case. In case where a big hall is let out, a temporary structure is put like cabin 12 or a temporary wall, it may not amount to material alteration. But when frontage is changed in a manner so as to cover the veranda and has been converted into shop( in this case) and that can be used independently, it changed the frontal structure of the building. The tenant in this case by putting shutters after closing the veranda and converting front veranda in closed shop, amounts to material alteration in the suit premises. The tenant has right to enjoy the property as given. He takes the property on rent knowing it well that what are the structures which he shall occupy during tenancy period and he is prevented by law from changing the property of the landlord who is owner of the property and the tenancy right is the right to use and enjoy the property and not to convert the property. Therefore, the first appellate court was right in holding that it is a case of material alteration looking to the facts of the case. The contention of the learned counsel for the appellants that change of temporary roof by another temporary roof or certain other changes cannot be considered material alteration, cannot be applied in the present case. I considered the submissions of the learned counsel for the parties and perused the record also. Much has been said by the learned counsel for the appellant about lack of pleading with the help of several judgments referred above, but the argument of the learned counsel for the appellants about 13 lack of pleading deserves to be rejected summarily because of the simple reason that the defendant contested the suit knowing it well that he is facing the allegation of sub-letting and he submitted the written statement contesting the allegation of the plaintiff about sub-letting and, thereafter, the trial court framed the issue specifically that whether defendant sub-let the rented premises “without permission of the landlord” making it clear what are the allegations against the defendant. The defendant thoroughly cross-examined the plaintiff and his witnesses on this issue. Otherwise also, the right to sub-let the property is given by Section 108(B)(j) T.P. Act, 18882 but the restriction has been put by the Rent Control Act over lessee's right to sub-let and a prior permission of landlord for creating sub-lessee has been made essential and violation of which makes the tenant liable for eviction from the leased premises. The appellant's hyper-technical objection about lack of pleading is based on his knowledge of law (Section 108(B)(j) of the Transfer of Property Act) along with his claim of ignorance of law as enacted in the Rajasthan by enacting Rajasthan Premises (Control of Rent and Eviction) act, 1950 because of the reason that according to defendants they know that the lessee has right to sub-let as per Section 108(B)(j) of the Transfer of Property Act, 1982 but prior permission of landlord for creating sub-lease is essential was not in their knowledge and the 14 defendants could understand the meaning of allegation of sub-letting with reference to Section 108(B)(j) of T.P. Act and could not understand allegation of sub-letting with reference to clause (e) of sub-section (1) of Section 13 of the Act of 1950. Such fine ingenious legal technical plea may demonstrate good legal skill of expert in legal profession but in this case it is too late. If objection about lack of pleading is accepted at latter stage of suit or at first appellate stage then that will be benefit to those persons who by their conduct have clearly shown that they understood the allegations against them, contested it and they failed in trial court and thereafter they with the help of law expert (or even by their own study of law) came to know that the pleas which they understood and contested, in fact, were not understood by them. Even if it is choice of the defendant to contest the suit on question of fact or on question of law or on both, question of law and question of fact then the legal plea dependent upon fact cannot be allowed to be raised when not raised in time. This principle is required to be followed with more rigour when not taking of such objection in time deprives other party from correcting pleadings, if permissible by law. The allegation of sub-letting against tenant with claim of decree of eviction of tenant by all its implication is an allegation of landlord that the premises has been sub-let by the tenant without permission of the landlord and cannot be read to mean that the premises has been let-out 15 with the consent of the landlord expressly or impliedly still the landlord is seeking eviction of the tenant on the ground of sub-letting. This Court has no hesitation in holding that in the suit claiming relief of eviction of tenant on the allegation of sub-letting by the tenant without specific mention of the words “without consent of landlord”, the plea of “without permission of the landlord” is inherent in it, because of the plain and simple reason that which sub-letting is ground for eviction is given in the Rajasthan Premises (Control of Rent and Eviction) Act,1950. Some of the facts are inherent, if plea is read with reference to law applicable. As plaint must clearly convey the case of the plaintiff to the defendant, the defence of the defendant must be clear so that the plaintiff can meet with the defence of the defendant and may also correct formal defects in the suit or may amend the suit or may submit additional pleadings whichever may be required and can be done to meet the defence/allegation of the defendant. Law of pleading is applicable to both the plaintiff and defendant with no difference. Pleading of each other should make each other aware of each other's case, allegations, ground and relief’s so that no one can give surprise to other and win by tricky skill or take advantage of his own lapse. At this stage, it will be worthwhile to refer the judgment of the Hon'ble Apex Court delivered in the case of Duggi Veera Venkata Gopalla 16 Satyanarayana vs. Sakala Veera Raghavaih and an. ( 1987(1) RCR 186, relied upon by the learned counsel for the appellants. Hon'ble the Apex Court in the said judgment held that in a petition for ejectment on the ground of bona fide requirement, all the ingredients in relevant section of Rent Act must be pleaded and proved and proof offered without appropriate pleading is of no relevance. The learned counsel for the appellants referred that part of the judgment of the Hon'ble Supreme Court in support of his plea for dismissal of the suit on the ground of lack of pleading ignoring the facts of the above case as well as the ratio descendi in the judgment of Duggi Veera Venkata Gopalla Satyanarayana (supra). In that case itself, the objection about lack of pleading was not taken in any of the courts below, as is the case in hand. Hon'ble the Apex Court specifically, in that case, did not permit the appellant to raise the plea of lack of pleading because the fact was not raised at any stage of the proceedings before the courts below. Hon'ble the Apex Court in the above said judgment, further held that even if the eviction order is set aside and the matter is remanded back to the Rent Controller allowing the parties to amend the pleadings and to adduce further evidence,