Karnataka High Court
Jainaullalbin Saheb vs Dhanyakumaraiya on 23 July, 1985
Equivalent citations: ILR1986KAR937
ORDER 6 Rule 1 -- Adequacy of pleading -- Liberal approach -- Unless prejudice caused demonstrated, irregularities not to be taken note of. This Court time and again has pointed out that bald pleadings which would not give adequate opportunity to the defendant or the opposite party to meet the case of the plaintiff or the petitioner should result in the prayer in the petition or the plaint being denied. The Courts have been liberal in considering the pleadings for a number of reasons some of which are historic .... It is not enough to contend that there is inadequacy of pleading. Much will depend on how the defendant understood the pleading and in what circumstances the parties went to trial. Unless the prejudice caused is demonstrated, irregularities cannot be taken note of. ORDER Chandrakantaraj Urs, J.
1. This is a tenant's petition under Section 115 C.P.C. It is directed against the order of the District Judge, Hassan dated 17th February 1983 made in H.R.C. No. 41/1982 on bis file.
2. The respondent-landlord sought eviction of the tenant In respect of the petition non-residential premises on the sole ground that the same was required for Ms own bona fide use and occupation. The landlord pleaded that he was a general merchant some three years before and bad since taken to transport business of goods and things which he was carrying on from the old premises in the market area as a lessee of the Municipality. He further averred that those premises were not suitable for carrying on transport business. He also assorted that the petition schedule premises was more suitable for such business.
3. The tenant resisted on the ground that the requirement was not bona fide, that the petitioner-landlord was already in possession of the premises where he was carrying on his general merchandise activities and therefore, it is only with the object of claiming more rent that he has initiated the proceedings. On such pleadings the matter went up before the Munsiff for trial. On appreciating the evidence placed before him, the Munsiff came to the conclusion that the requirement was not bona fide and dismissed the eviction petition. Thereupon the landlord preferred the revision to the District Judge under Sub section (2) to Section 50 of the Karnataka Rent Control Act (for short 'the Act'). The District Judge found that the Munsiff had mis-directed himself in appreciating the evidence on record and reversed the finding accepting the case put forward by the landlord. In the result, he allowed the eviction petition and directed the eviction of the tenant.
4. Aggrieved by the same, the present revision is filed before this Court.
5. Sri S. Nanjundaswamy, Learned Counsel appearing for the tenant has strenuously urged the following three points for consideration.
6. His first contention is that the pleading in the case does not adequately meet the requirement to establish the good faith and bonafide expected of a landlord in such a position under Clause (h) to the proviso to Sub-section (1) of Section 21 of the Act. A perusal of the pleading read with the statement of objections leaves no doubt in my mind that the petitioner had not withheld any material fact which would prejudice the defence, if any. of the tenant. He has disclosed what his earlier business was. He has disclosed that he had commenced operation in transport business. He has disclosed that he was carrying on the business in the premises where he was carrying on his general merchandise activities. He has also disclosed that the petition schedule premises was more suitable for his transport business. The tenant uderstood those pleadings and resisted as is apparent from the statement of objections filed. Therefore, it is not now open to contend that the pleadings are insufficient This Court, time and again has pointed out that bald pleadings which would not give adequate opportunity to the defendant or the opposite party to meet the case of the plaintiff or the petitioner should result in the prayer in the petition or the plaint being denied. The Courts have been liberal in considering the pleadings for a number of reasons some of which are historic. I have pointed out the bar in the mofussil area of any State is not so well informed some times despite clear instruction. There may be errors by the members of the legal profession. Those errors may be due to lack of knowledge and importance of pleading or it could be a mere oversight. But in the instant case, I do not see either oversight or inadequacy of pleadings. Therefore, this contention must necessarily fail. The Supreme Court has ruled on more than one occasion in regard to this. But it would be sufficient for me to extract the passage from the decided case of Nagubai Animal & ors. v. B. Shama Rao & ors., :
"Although no specific plea that the sale in favour of the defendants was affected by the doctrine of Us pendens was raised in pleading of the plaintiff and no specific issue was directed to that question the defendants went to trial with full knowledge that the question of Lis Pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same.
In the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them.
In other words, what emerges from the above passage is that it is not enough to contend that there is inadequacy of pleading. Much will depend on how the defendant understood the pleading and in what circumstances the parties went to trial. Unless the prejudice caused is demonstrated, irregularities cannot be taken notice of.
7. The next point urged was that the landlord had admittedly another premises adjacent to the petition premises which he has leased out to others. True, a suggestion to that effect was made in the-cross examination of P.W. l. He denied the suggestion. What he really admitted was that the adjoining premises was first in the occupation of a baker and was at the relevant time in the occupation of one Hanumanthappa. But no further elicitation was made by the landlord as to when Hanumanthappa was inducted as a tenant in the adjoining premises Whether it was before the filing of the petition and if so approximately about what time. Nor was it elicited that he was inducted after the petition was filed. If latter was the case, then the tenant would have a very strong defence as held by the Supreme Court in a number of cases that the cause of action itself disappeared if the landlord bad an opportunity to occupy one of his own premises which fell vacant during the pendency of the litigation or immediately prior to the filing of the eviction petition. No other positive evidence had been led by the tenant to establish the date of the commencement of the tenancy of Hanumanthappa. Therefore, despite the strenuous efforts of Sri Nanjundaswamy in this behalf, I cannot take notice of the submission that the premises fell vacant during the pendency of the eviction petition or immediately prior to the filing of the eviction petition.
8. The third point urged by the Learned Counsel was that the learned District Judge did not sufficiently apply his mind to the question of comparative hardship which is enjoined under Sub-section (4) of Section 21 of the Act. I have read paragraph 15 of the order of the Learned District Judge. I find that he has applied his mind and he has been guided by 1961 reported decision of this Court. It is possible that on a given set of facts and circumstances, a particular Judge may use his discretion in a particular manner. As Lord Denning often repeated - the function of the superior Court is not to test the discretion by applying as to whether the Appellate or Superior Court would have come to the conclusion or a different conclusion. But it is tested only to see whether such discretion has been properly and not perversly exercised. The mere fact that this Court may have come to a slightly different conclusion on the same circumstances is not a reason why this Court should interfere with the discretion otherwise exercised by the lower Court.
9. In the result, this petition must necessarily fail despite the hardship which the tenant has to undergo. The petition is therefore rejected. But there will be no order as to costs. The time for the tenant to vacate the premises is extended by three months from to day by consent of parties subject to payment of rents without default.