Case: Dr. Vijay Kumar &amp; Others Vs. M/s. Raghbir Singh Anokh Singh

1. The first appellant, Dr. Vijay Kumar, is the father of the second and third appellants, Ajay Kumar and Ashok Kumar. Dr. Vijay Kumar was the tenant of the shop No. 2855, Guru Nanak Building, Kashmiri Gate, Delhi. The respondent is the owner of the shop. On January 12, 1965 he applied for ejectment of the appellants from the shop. The application was made to the Rent Controller under proviso (b) to(i) of Section 14 of the Delhi Rent Control Act, 1958. The application alleged that the first appellant hasassigned or otherwise parted with a part of the shop to the other appellants. The application was contested by the appellants. By his order, dated December 6, 1966, the Rent Controller allowed the application and directed ejectment of the appellants. Their first appeal against his order was dismissed by the Rent Control Tribunal on April 25, 1968. Their second appeal was dismissed by the High Court of Delhi on October 29, 1971. They have preferred the present appeal by special leave.

Reasoning: 3. The findings of facts and the conclusions reached by the Rent Controller were confirmed by the Rent Control Tribunal. The High Court agreed with the appellate authority. These findings cannot beimpeached before us. In the result, we would accept the conclusion of the Rent Controller that half of the shop was exclusively occupied by the second and third appellants and that the first appellant has parted with possession of that portion to them. The rejection by the Rent Controller of the plea of joint business also cannot be disturbed by us. It is a well reasonedIt is a plausible argument, but we are unable to entertain it at this stage. Such a plea was never taken in their written statement. It was not pressed even during the hearing before the Rent Controller or the Rent Control Tribunal or the High Court. It has been taken for the first time in the special leave petition. The plea is inconsistent with the plea taken in the written statement. In the written statement the plea, in substance, was that the first appellant was in possession over the entire accommodation. The plea now sought to be raised is that the second and third appellants were in possession of the half portion of the shop exclusively but with his permission. The new plea is not a pleading of law; it is a pleading of fact. The respondent had no opportunity of confuting the plea. If we allow the appellants to take the new plea now, it is likely to cause him prejudice.6. No presumption can be drawn from mere relationship of the father and son or from joint living and joint messing that the second and third appellants were in permissive possession of the half portion. If the appellants had taken this plea in their written statement, the respondent would have got an opportunity of proving that the plea was false.7. Having regard to these circumstances, we are not permitting the appellants to raise the new plea. It is now too late.