IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.7296 of 2009 Date of Decision: 8.9.2010 Kanad Syal. ....... Petitioner through Shri Puneet Bali, Advocate. Versus Pardeep Kumar Aggarwal. ....... Respondent through Shri A.K.Chopra, Senior Advocate with Shri Rajnish Chauhan, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This revision petition is directed against judgments dated 8.9.2007 and 27.11.2009 passed respectively by the Rent Controller and the Appellate Authority, Ambala whereby the eviction application filed by the landlord-respondent was accepted and the appeal filed by late Smt.Usya Syal (Smt.Usya D.Syal), mother of the petitioner, was dismissed. The respondent, who is owner and landlord of Shop No.171/3, Near Vijay Rattan Chowk, Ambala Sadar, Ambala Cantt. (hereinafter described as the demised premises), had filed an application under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act,1973 (for C.R.No.7296 of 2009 -2- .... short, `the Act') against Smt.Usya Syal, who was a statutory tenant in the demised premises, for her ejectment therefrom on the grounds of non- payment of rent, material impairment and personal necessity. The Rent Controller and the Appellate Authority accepted the plea of the respondent and ordered the ejectment of the tenant, which has resulted in the filing of the instant petition by the petitioner, who is her son as Smt.Usya Syal died during this interregnum. The grievance of the petitioner is limited. It has been contended by the learned counsel for the petitioner that the ground of material impairment was not established before the Rent Controller, as also the Appellate Authority and the entire thrust of the eviction application, the evidence and the arguments of the respondent centred around this aspect of the controversy, but the ejectment has been ordered on the ground of personal necessity of the landlord even though there was neither any issue struck nor was any material evidence adduced by him to prove the same. He placed reliance on a Full Bench judgment of this Court in Banke Ram Versus Smt. Sarasti Devi, AIR 1977 P&H 158 with specific reference to the referral order, as also the numerous decisions which were considered therein and the conclusion contained in it, to contend that the impugned judgments are liable to be set aside. The relevant observations on which reliance has been placed are extracted below:- “Though all the provisions of the Code of Civil Procedure are not applicable to the proceedings in the applications for eviction under the Act, but the principles which are the basis C.R.No.7296 of 2009 -3- .... and foundation of the administration of justice as the one incorporated in O.VI, R.2 of the Code of Civil Procedure, will be undoubtedly applicable to those proceedings also. The purpose in following the procedure of framing of issues in eviction applications is also intended to pin-point 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. The conditions laid down in sub-cls. (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. If the landlord is to satisfy those essential conditions, he must lay foundation regarding the same in his pleadings so that the tenant-respondent is in a position to rebut the same and proper issues are also framed. A landlord applying for the eviction of his tenant under S. 13(3) (2) (a) on the ground contained in sub-paragraphs (b) and (c), i.e., for his own use and occupation, has to specifically plead in his application the contents of sub-paragraphs (b) and (c) aforesaid, which put a rider on the right of the landlord to get the eviction of his tenant from the premises even for his own use unless he succeeds in proving that he was not in occupation of another residential building in the same building after the commencement of the Act without any sufficient cause.” C.R.No.7296 of 2009 -4- .... Learned counsel for the petitioner also sought to draw strength from paragraphs 3, 4, 6, 7 and 12 of the aforesaid judgment. The same are also extracted below:- “3. The earliest decision having bearing on the matter in controversy is by Bishan Narain,J., in Civil Revn. No.372 of 1956 (Lakhi Ram v. Piare Lal), decided on April 20,1958 (Punj), wherein the application by the landlord for the eviction of the tenant on the ground of bona fide need for personal occupation was dismissed by both the Rent Controller and the Appellate Authority. The landlord did not make any allegation, relating to sub-cls. (b) and(c) of the aforesaid provision, in his application. The tenant also did not make any reference regarding the same in his reply. No issue regarding the same was framed by the Rent Controller. One of the contentions of the learned counsel for the landlord-petitioner in the revision petition was that the eviction application had been dismissed on a ground regarding which no issue had been framed. This contention was upheld by Bishan Narain,J. and it was held that no amount of evidence could be looked into upon a plea which was never put forward. It was further held that it will be extremely unfair in the absence of a specific issue to non-suit the landlord. Thus, the revision petition was accepted and the case was remanded back after framing new issues with reference to sub-cls. (b) and (c ) of the Act. C.R.No.7296 of 2009 -5- .... In Krishan Lal Seth v. Pritam Kumari, (1961) 63 Pun LR 865, the Division Bench comprising of Mehar Singh and Mahajan,JJ., after taking into consideration the above- mentioned decision rendered by Bishan Narain,J., came to the conclusion and held that it was not necessary to allege and plead anything referred to in sub-cls. (b) and ( c) of the aforesaid provision. The ratio of the decision in Krishan Lal Seth's case (supra) is the sole basis of one view of the question involved and is reproduced below in extenso: “The learned counsel has drawn our attention to the observation of the learned Judges that `the scope of enquiry by the judicial and quasi-judicial tribunals is normally confined to the disputes set out by the contesting parties in their respective pleadings; in other words, the rights and liabilities of the parties as they exist on the date of the initiation of the proceedings alone fall within the scope of the investigation of which the tribunal is seized and it is generally incompetent for a tribunal to adjudicate upon any controversial matter which does not find place in the pleadings of the parties.' As a general statement of law this is unexceptional. However, the ground for eviction under S.13(3) (a) (i) from a residential building is the requirement by the landlord of the building for his own occupation and the sub- clause adds two statutory conditions to this ground before it can be successfully urged to obtain eviction. Such statutory C.R.No.7296 of 2009 -6- .... conditions obviously must be established by the landlord, but as the conditions are provided by the statute, it is not necessary to repeat them in the pleadings. The object of requiring the parties to be confined to their pleadings is to avoid surprise to the opposite party, and in regard to a prayer for the eviction on the ground of requirement of residential building by a landlord for his own occupation, there can possibly be no surprise if paras (b) and (c) of sub-cl. (i) of cl. (a) of S.13(3) are not repeated in the application, for such conditions are provided by the statute and are available for the knowledge of the tenant from the perusal of the statute. Thus it was not necessary for the landlord to restate in the application those statutory conditions and for her omission to refer to those conditions her application could not possibly be dismissed. There could not be any ground for surprise to the tenant and there is no justification for dismissal of the application for the mere omission to reproduce the statutory conditions in the application. This argument is without substance and is discarded.” The decision in Krishan Lal Seth's case (supra) was followed by Pandit,J., (as he then was) in Dev Raj v. Tilak Raj Dharam Pal, 1973 Cur LJ 557 (Punj) and the revision petition of the tenant was dismissed though there was no averment in the eviction application regarding sub-cls. (b) and ( c) of S.13 of the Act. The learned Judge without any discussion, relying upon the C.R.No.7296 of 2009 -7- .... above-mentioned Division Bench decision only held as under:- “Under the law, it was not necessary to mention these things in the application.” Tewatia,J. (as he then was) also relied upon the ratio of the above-mentioned decision by the Division Bench while deciding Civil Revn. No.529 of 1973 (Gurdit Singh v. Shankar Lal Misra), decided on July 15,1975 (Punj). 4. This matter also came up for consideration before Himachal Bench of the Delhi High Court in H.N.Bhasin v. Chmba Mall, 1970 Ren. CR 840 (Delhi) in which Ansari,J., expressed doubt if in the absence of specific pleadings by the landlord and in the absence of specific issue on the point the evidence of the landlord was at all admissible. It was held,- “It is doubtful whether in the absence of specific pleadings by the respondent and in the absence of a specific issue on the point the evidence of the respondent was at all admissible. No doubt the petitioner did not object to this portion of the evidence of the respondent. But under the circumstances, it cannot be said that this portion of the evidence had gone unchallenged by the petitioner. In the absence of pleadings and also in the absence of a specific issue on the point the petitioner could not have expected the respondent to lead evidence on this point, and he could not be expected to challenge such evidence either by cross-examination or by leading independent C.R.No.7296 of 2009 -8- .... evidence. There are also no findings either by the learned Controller or by the Appellate Authority that the respondent has satisfied these requirements of S.13(3) (a)(i) of the Act. The order of the learned Appellate Authority directing the petitioner to put the respondent in possession of the portion of the building in dispute cannot, therefore, be sustained.” The revision petition was, thus, allowed and the case was remanded for amendment of necessary pleadings and to adduce evidence. Subsequently, however, the ratio of the decision in Krishan Lal Seth's case [(1961) 63 Pun LR 865)] (supra) was followed by a Division Bench of the Himachal Pradesh High Court in Puran Chand v. Jagdish Lal, 1974 Ren CR 413 (HP). However, on facts, the learned Judges came to the conclusion that the pleadings by the landlord in the eviction application decidedly embraced substantially conditions (b) and ( c ), although the narration was not made with that much exactitude and precision. Further, it was also held that both the parties knew very well as to what points were at issue between them and none was prejudiced. They were afforded ample opportunity to meet such points of dispute. As a matter of law, however, it was finally held that the absence of a specific pleading with regard to the provisions of sub-cls. (b) and(c) could not prove fatal to the eviction petition. 6. Reliance was placed by the learned counsel for the C.R.No.7296 of 2009 -9- .... respondent on the decision of Goyal,J., in Civil Revision No.1116 of 1976 (Amar Nath v. Sudarshan Singh) decided on November 2,1976 (Punj). In that case, the learned Judge noticed some of the abovementioned decisions in favour of the proposition that it was essential to plead the ingredients of sub- cls. (b) and ( c),but then posed the question as to whether the non-pleading of the fact that the landlord was not occupying any other residential area in the urban area concerned was fatal to the cause of the respondent,landlord. According to the learned Judge, every variance between pleading and proof is not necessarily fatal to the suit or defence and the test is to see whether the party aggrieved has really been taken by surprise or is prejudiced by the action of the opposite party. A perusal of the judgment shows that the learned Judge did not express disagreement with the proposition that it was necessary to plead ingredients of sub-cls. (b) and ( c) and decided the matter on the particular facts of that very case. 7. 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-cls. (b) and ( c) of S.13(3) (a).Even after the decision of the Division Bench of this Court in Krishan Lal Seth's case (1961-63) Pun LR 865) to the contrary, Mahajan,J., (as he then was) one of the Judges on this Division Bench expressed a contrary view in Darshan C.R.No.7296 of 2009 -10- .... Singh's case (1974 Ren CR 99) (Punj) (supra). It is well established and salutary principle of law that in any civil proceedings, 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. O.VI, R.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 party 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 Code of Civil Procedure are not applicable to the proceedings in the applications for eviction under the Act, but the principles which are the basis and foundation of the administration of justice as the one incorporated in O.VI, R.2 of the Code of Civil Procedure, will be undoubtedly applicable to those proceedings also. The purpose in following the procedure for framing of issues in eviction applications is also intended to pin-point 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 C.R.No.7296 of 2009 -11- .... 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 Siddik Mahomed Shah v. Mussammat Saran, AIR 1930 PC 57(1), 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 abovesaid case was approved by their Lordships of the Supreme Court in Bhagat Singh v. Jaswant Singh, AIR 1966 S.C. 1861. 12. In the present case, we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of sub-cls. (b) and ( c) and not the question that if in a particular case these ingredients are not pleaded, but the parties have led evidence with regard to C.R.No.7296 of 2009 -12- .... them, what will be the effect? In any given case, where facts have not been averred in the pleading, a number of questions can arise as to whether proper evidence has been adduced by the landlord regarding those facts which do not find place in the pleadings and secondly whether such evidence will be admissible or not and lastly, whether the tenant was taken by surprise or not and had led evidence with full knowledge of the requisite contentions raised by the landlord and whether the tenant has in those circumstances been prejudiced or not, the Court be required to give full consideration to the contentions raised by the respective parties and the facts and circumstances of each case before giving its decision in favour of the landlord or the tenant,but the decisions of the High Courts or the Supreme Court, in this regard, cannot be of any avail to detract from the validity of the proposition that it is necessary for the landlord to make averments regarding the ingredients of sub- cls. (b) and ( c). However, it may be made clear that when it is held that it is essential to plead the ingredients of sub-cls. (b) and ( c) in the eviction application by the landlord, it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged in sub-cls. (b) and ( c) can be looked into. This is not peculiar to the eviction applications. Similar considerations come into operation even in the case of suits which are governed by the C.R.No.7296 of 2009 -13- .... specific and detailed provisions of the Code of Civil Procedure regarding pleadings.” Reliance was also placed by the learned counsel for the petitioner on the decisions of the Supreme Court in Vishawanatha Achari Versus Kanakasabapathy, (2005) 6 S.C.C. 56 and Biswanath Agarwalla Versus Sabitri Bera and others, (2009) 15 S.C.C. 693 wherein It was observed that if an issue on a particular aspect has not been framed, the judgment and decree cannot be sustained. To the contrary, learned counsel for the respondent contended that there was a specific pleading regarding the bona fide need of the respondent-landlord and there was evidence to this effect in the shape of his own affidavit and the tenant had cross-examined the landlord on all the aspects of the controversy and was, thus, alive to the issues which arose in the eviction application and consequently, could not plead that since no issue was struck, the impugned judgments were rendered unsustainable in the eyes of law. To support this contention, he placed reliance on Tika & Ors. Vesus Ram Chander & Ors., 2003(3) Civil Court Cases 691 (P&H) (S.B.); Ajit Singh Versus Joint Development Commissioner, Punjab, 2005 (2) Civil Court Cases 827 (P&H) (D.B.); and Kannan (dead) by Lrs.& Ors. Versus V.S.Pandurangam (dead) by Lrs. & Ors., 2008(1) Civil Court Cases 220 (S.C.). He further relied upon a judgment of this Court in Vinod Kumar Versus Sant Lal, 2006(1) Rent Control Reporter 316 (P&H) to contend that it is always the need of the landlord which is to be assessed by the Courts and not questioned suspiciously. C.R.No.7296 of 2009 -14- .... I have thoughtfully considered the rival contentions and gone through the whole record. To appreciate the controversy, it is necessary to extract here paragraph 2 of the eviction application and the corresponding paragraph of the written statement filed by the tenant, which contain the pleading and reply regarding the ground of personal necessity of the landlord qua the demised premises. The same read as under:- “ Paragraph 2 of the eviction application. 2. That the petitioner requires the tenancy premises i.e. Shop No.171/3,Near Vijay Rattan Chowk,Ambala Cantt. bona fide for his own use and occupation for starting his own business bona fide. The petitioner was in the employment of ANDHRA BANK from where the petitioner has now got voluntarily retired due to the compelling circumstances w.e.f. 29.10.1997 and at present, the petitioner has no other shop in the area of Ambala Sadar, Ambala Cantt. for starting his own business. The petitioner at present has started a `Sarafa' business as a tenant in Hanuman Market, ambala Cantt. under Shri Anirudh Bindlish in Shop No. 4567-portion. The present shop has been taken on rent by the petitioner from Shri Anirudh Bindlish temporarily for a short period, which is situated in a Gali connecting Sarafa Bazar and Subzi Mandi. The petitioner requires the shop in question for his own use and occupation for starting his new business and the petitioner shall do his C.R.No.7296 of 2009 -15- .... Sarafa business in the shop in question after getting the same vacated from the respondent. ..... Paragraph 2 of the written statement. 2. That para No.2 of the petition is incorrect. The petitioner does not require the shop in question for his bona fide use, need and occupation, as alleged. It is not within the knowledge of the answering respondent whether the petitioner was in the employment of Andhra Bank and he got voluntary retirement. As a matter of fact, the petitioner is creating one or the other ground falsely for the eviction of the respondent. As a matter of fact, the petitioner neither requires the premises in question for his personal bona fide use, need and occupation nor he intended to start his business, as alleged. Anirudh Bindlish is a friend of the petitioner and in so far as knowledge of the respondent goes, he is a relative of the petitioner also. The alleged act of taking on rent the shop from Anirudh Bindlish is nothing but a sham transaction. The petitioner does not require the shop in question for starting any business, as alleged. A false ground is being created just to get the shop in question vacated otherwise, the petitioner does not require the shop in question for his personal bona fide use, need and occupation.” A reading of the above extracted pleadings of the parties shows that the tenant had given a detailed reply to the averment of the personal C.R.No.7296 of 2009 -16- .... necessity set up by the landlord. Concededly, there was no issue framed on the basis of these pleadings. But for the reason that there were specific pleadings to this effect which were adequately answered by the tenant with her objection and also for the reason that the landlord was cross-examined by the tenant on this aspect of the controversy, it does not lie in the mouth of the tenant or her legal representative now to question the propriety of the eviction order on the ground that no issue had been struck and, therefore, she or he had been taken by surprise. The observations of the Full Bench and the paragraphs of the judgment in Banke Ram's case (supra), relied upon by the learned counsel for the petitioner and which have been extracted above, can be understood if the facts of that case are to be considered. It is evident that in the reported case, the landlord had not specifically pleaded the ground of his personal necessity to seek eviction of the tenant and no issue was struck in that behalf and, therefore, the observations flowed as a natural and logical corollary to the legal proposition that once there is no pleading, there can be no issue and no evidence in support thereof and the Full Bench concluded, thus, only when it proceeded on the aforesaid premise. But, in the instant case, there is specific pleading to which the tenant had responded and had also cross- examined the landlord in an attempt to shatter his plea. The tenant was,thus, not taken by