Subhash Kumar Pradhan vs Shanti Devi on 11 September, 2014

[Cites 5, Cited by 2]

Sikkim High Court

Subhash Kumar Pradhan vs Shanti Devi on 11 September, 2014

Equivalent citations: AIR 2015 SIKKIM 13, (2015) 145 ALLINDCAS 936 (SK)

1. Being aggrieved with the judgment and decree dated 23.09.2013 passed in Eviction Suit No.3 of 2012 by the District Judge, Special Division-II at Gangtok, East Sikkim, the Appellant/Plaintiff has filed this Appeal. The Respondent/Defendant has also filed a Cross Objection against decision of Issue No.4. The Appeal and the Cross Objection both are being disposed of by this judgment.

2. The facts, briefly stated, are as under: -

2.1 The Appellant/Plaintiff is owner of the suit premises, i.e., a shop measuring 13' x 33' situated at Ranipool Bazar, East Sikkim. This shop was let out on rent by the Appellant to one Shri Ram Nath Prasad, husband of the Respondent/Defendant. Ram Nath Prasad, died on 17.03.2004 and the shop in question, thereafter, was being run by the Respondent. The Appellant came with the case that this shop was bonafidely required by him for personal occupation and rent of the shop was also not paid since July, 2002 till the filing of the suit on 20.04.2012, therefore, the Respondent be evicted from the said 3 RFA No.22/2013 & CO No.01/2014 shop and a decree for arrears of rent in sum of Rs.1,61,506.00 be also passed in his favour. 2.2 Both the grounds, taken by the Appellant for eviction, were held as not proved, therefore, the trial court dismissed the suit for eviction. However, vide Issue No.4, it held that the Appellant was entitled to receive a sum of Rs.1,35,058.00 as arrears of rent due to him for the period between July 2002 to April 2009 excluding the period during which the Respondent was not in possession of the suit premises. The trial court took notice of the fact that the Respondent was evicted from the suit premises on 06.07.2006 by the order of the High Court and was again put back in possession thereof on 08.02.2008 by the order of the Hon'ble Supreme Court, therefore, the Respondent was not liable to pay rent for the above period, i.e., from 06.07.2006 to 08.02.2008.

2.3 The Appellant being dissatisfied by the refusal of the decree of eviction in his favour, has come up in Appeal, in which the Respondent has filed her Cross Objection challenging the order passed on Issue No.4 relating to payment of arrears of rent.

3. Mr. Eklovya Rai Nagpal, learned Counsel appearing on behalf of the Appellant, has argued that the finding on Issue No.3, i.e., the eviction sought on the ground of bonafide requirement, is erroneous and perverse. He referred to the various paragraphs of the evidence of Subhash Kumar Pradhan, Appellant (PW-1). He has argued that the take home salary of the Appellant was Rs.25,000.00; the Appellant was unable to make ends meet with the said take home salary; he has no 4 RFA No.22/2013 & CO No.01/2014 alternative source of income, therefore, he required the suit premises bonafidely for running a grocery shop by his wife.

4. On the other hand, Mr. A. K. Upadhyaya, learned Senior Counsel appearing on behalf of the Respondent, has opposed these arguments. He referred to the various admissions of the Appellant (PW-1) as also the contents of the notice issued by the Appellant to the Respondent. On direction to pay arrears of rent, he argued that even if it was held that the Appellant was entitled to receive arrears of rent which he had claimed, since the entire arrears was barred by limitation, therefore, the learned trial court ought to have directed for payment of arrears of rent of three years only and not beyond that. Therefore, the decree relating to payment of arrears of rent should be modified to the above extent.

5. Having heard Counsel for the parties, I have perused the records of the trial court.

6. Admittedly, the claim of the Appellant was based on the Notification No.6326-600-H&W-B of the Government of Sikkim issued on 14th of April, 1949. The above notification which is applicable to the area concerned, in paragraph 2, provides grounds for eviction. It provides that "The landlords cannot eject the tenants so long as the scarcity of housing accommodation lasts, but when the whole or part of the premises are required for their personal occupation or for thorough overhauling the premises or on failure by the tenants to pay rent for four months the landlords may be permitted to evict the tenant on due application to the Chief Court." 5

RFA No.22/2013 & CO No.01/2014

7. The Appellant had taken two grounds for eviction, i.e., requirement of the accommodation for personal occupation and failure by the tenant to pay rent for four months.

8. So far as the requirement for personal occupation is concerned, learned Counsel for the Appellant has argued that it comes in the evidence of the Appellant (PW-1) that wife of the Appellant, namely, Sinora Pradhan (PW-2) wanted to run a grocery shop in the said premises, therefore, it was required to be vacated. He referred to those paragraphs of the affidavit filed by the Appellant (PW-1) which shows that the trade license (Exbt.11) was also issued in this regard and that the quotations for purchasing the articles (Exbt.12 and Exbt.13) were called from the respective suppliers/dealers.

9. I have carefully gone through the contents of the plaint as also the contents of the evidence of Subhash Kumar Pradhan, Appellant (PW-1) and Sinora Pradhan (PW-2). Paragraphs 6 and 7 of the plaint contain pleadings relating to bonafide requirement. In paragraph 6 the Appellant has simply stated that he required the suit premises for his personal and bonafide requirement and therefore, he sent legal notice dated 29.01.2010 to the Respondent. In paragraph 7 he has simply stated that he has no other premises in Gangtok and on failure of the Respondent to comply with the notice of eviction, he had to file the instant suit. Mr. Upadhyaya has contended that the pleadings in relation to requirement of the premises for opening of a grocery shop by the wife of the Appellant being bonafide, is 6 RFA No.22/2013 & CO No.01/2014 completely lacking in the plaint, therefore, no amount of evidence can be looked into for determining that, in fact, the suit premises was required by the Appellant for opening of a grocery shop by his wife, and thus the requirement was bonafide and it was a ground for eviction under the aforesaid Notification of 14.04.1949.

10. The argument of Mr. Upadhyaya appears to be correct. As already stated, there is no whisper in the plaint that the Appellant required the suit premises for opening of grocery shop by his wife (PW-2). He has simply pleaded that the suit premises was bonafidely required.

11. Order VI Rule 2 of the Code of Civil Procedure, 1908, requires pleadings to state material facts. Sub-rule (1) of Rule 2 requires that 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 defense, as the case may be. The material facts are primary and basic facts which may be pleaded by the party in support of the case set up by him to establish his cause of action. Since the object and purpose is to enable the opposite party to know the case he is to meet, in absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entitle dismissal of the suit. This is what the Supreme Court said in Narayanaswami v. C. P. Thirunavukkarasu, (2000) 2 SCC 294. Here the Supreme Court also deliberated about the 'particulars' making a distinction between the 'material facts' and the 7 RFA No.22/2013 & CO No.01/2014 'particulars'. After going through the entire plaint, we do not find any whisper therein that in fact the Appellant wanted to open a grocery shop for his wife and for that purpose, a license was also obtained and quotations for purchasing articles were also taken.

12. It is almost well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. The law is well settled that no party can travel beyond its pleadings and all necessary facts must be pleaded in the pleadings of a party so that the opposite party may be in a position to know as to what case he has to defend and thus, nothing comes before him as a surprise at the time of the evidence.

13. In the instant case, the ground relating to opening of a grocery shop and the said requirement being bonafide, comes for the first time when the parties were called upon to adduce their evidence. Therefore, the plaint itself was completely lacking in 'material facts' which was the basic requirement under Order VI Rule 2 CPC and on this ground the evidence led by the Appellant relating to the above facts was not required to be considered. Thus, bonafide requirement was neither pleaded with material facts nor proved on the basis of the evidence adduced by the Appellant.

14. That apart, it comes in the evidence of the Appellant (PW-

1) that he had sold the suit premises to one Shri Gulshan Rai 8 RFA No.22/2013 & CO No.01/2014 Nagpal in the year 2009. He also admitted that in the notice (Exbt.10) dated 29.01.2010, sent by him to the Respondent, he had demanded to hand over the suit premises to Shri Gulshan Rai Nagpal and in the said notice he did not mention about the bonafide requirement of himself or his family members. He further admitted that, as per the said notice he had authorized Shri Gulshan Rai Nagpal to collect the rent, to take possession of the suit premises and to claim damages and costs against the Respondent. This also shows that in fact, the premises was sold to one Shri Gulshan Rai Nagpal in the year 2009 and the Appellant wanted to get possession of the suit premises for handing over to the new purchaser. Thus, the element of bonafide requirement gets shadowed by the above admissions of the Appellant in his own evidence, and the statement in evidence that his wife would run a shop in the premises appears to be incorrect and baseless.

15. Mr. Nagpal, referring to the decision of Kedar Nath Agrawal and another v. Dhanraji Devi and another, 2004 AIR SCW 5789, has argued that events happening after institution of a suit/proceeding, may be considered and the changed circumstances may also be looked into by the court. His argument was that even after selling the suit premises to Gulshan Rai Nagpal, as the sale was not completed, the wife of the Appellant wanted to run a grocery shop in the suit premises.

16. In Kedarnath (supra) it was held that the basic rule is that the rights of the parties should be determined on the basis of 9 RFA No.22/2013 & CO No.01/2014 institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances.

17. There is no doubt about the above proposition, but how it helps the Appellant is a question. In the instant case, nothing has happened after the institution of the suit and no subsequent events have taken place. In case on hand, the alleged fact relating to opening of a grocery shop by the wife of the Appellant, according to the Appellant himself, was a fact which was existing prior to institution of the suit. It is not a case in which that requirement has arisen after the institution. Even then it was not pleaded. Therefore, the above law does not help the Appellant. That apart, even if such events would have taken place subsequently, they were required to be brought on record by amendment of the plaint and not that the Appellant/Plaintiff would simply lead evidence about such events, and they would be taken into consideration by a court trying a suit saying goodbye to the law of procedure for amendments and principles of strict adherence to the pleadings and proof.

18. Mr. Nagpal has also contended that the affidavit filed by Kameshwar Prasad (DW-1) as the attorney of his mother, Shanti Devi (Respondent) was not properly verified, therefore, it was required to be ignored by the trial court. I have gone to the 10 RFA No.22/2013 & CO No.01/2014 contents of the affidavit as also its verification. This affidavit was filed by Kameshwar Prasad (DW-1) for the purpose of adducing evidence on behalf of the Respondent. In verification, Kameshwar Prasad (DW-1) has solemnly affirmed that the statements made in the affidavit were true to the best of his personal knowledge which he believed to be true. How it can be said to be a defective affidavit. That apart, it was not a case in which the suit was decided simply on the basis of affidavit evidence. Here the witnesses filing affidavits were called upon by the court for further examination and cross-examination and then their evidence was appreciated in due course of law. Thus the objection appears to be frivolous.

19. That apart, in a suit for eviction, as is well settled, the burden of proving the grounds for eviction, like alleged requirement in this matter, always lies on the Plaintiff. Therefore, the Appellant should have discharged his burden successfully and not that he would have simply jumped upon to find out the alleged defects in the verification of the affidavit filed in support of the Respondent, as it is cardinal principle of law that the Plaintiff is required to prove his own case and can only succeed on the strength of his own case and not on the weakness found in the case of the Defendant (vide Sayed Muhammed Mashur Kunhi Koya Thangal vs. Badagara Jumayath Palli Dharas Committee and Others, (2004) 7 SCC 708.

20. To rebut the alleged requirement of the Appellant, the Respondent has proved on record the two earlier orders 11 RFA No.22/2013 & CO No.01/2014 (Exbt.C and Exbt.D) passed by the High Court and Hon'ble Supreme Court. The contents of the above orders would show that after the death of the husband of the Respondent (the original tenant), the Respondent had demanded NOC from the Appellant for getting the trade license of the grocery shop in her name, and when it was denied, then she filed two Writ Petitions before the High Court of Sikkim. The first Writ Petition was disposed of with certain directions and the second Writ Petition, i.e., Writ Petition No.24/2006 was dismissed by the High Court with a cost of Rs.1,00,000.00 (Rupees one lac) upon the Respondent, and a mandatory order of eviction directing her to vacate the premises in question within a week was also passed. Thereafter, SLP (C) No. 10774 of 2006 was filed before the Supreme Court giving rise to Civil Appeal No.687/2008 in which the judgment and orders were passed on 25.01.2008 and the order passed by the High Court was set aside by allowing the Appeal with cost of Rs.25,000.00 and it was directed that the possession of the Respondent be restored within a fortnight. The manner in which the possession was taken up by the Appellant which he had to hand over to the Respondent by order of the Supreme court and the contents of the order of the Supreme Court would further show that the Appellant did not act in a bonafide manner and he was always bent upon evicting the Respondent from the tenanted premises. This also rebuts the claim of the Appellant relating to his requirement for personal occupation.

RFA No.22/2013 & CO No.01/2014

21. So far arrears of rent is concerned, the Appellant had claimed the rent since July 2002 till April 2012. The learned trial court vide Issue No.4 has allowed the entire claim of the Appellant except the claim relating to the period from 06.07.2006 to 08.02.2008, during which period the Respondent was out of possession of the said premises vide order of the High Court which ultimately was restored to her by the order of the Supreme Court. In paragraph 66 of the impugned judgment, the trial court has said that equity and fairness requires that the Respondent should pay to the Appellant a sum of Rs.1,35,058.00 as arrears of rent due upon her.

22. Article 52 of the Limitation Act, 1963 provides the period of limitation as three years for claiming the arrears of rent from the date when the arrears become due. The basic requirement for application of this article is that a relationship of landlord and tenant must be proved between the parties. It is well settled that the Law of Limitation bars the remedy of the landlord to recover the rent for the period beyond three years prior to the institution of the suit. In the instant case, the learned trial court has allowed the entire rent claimed by the Appellant except for the above period in which the Respondent was not in possession of the suit premises. Thus, the claim of the arrears of rent beyond three years prior to the institution of the suit has been allowed which was a time barred claim. The Respondent has filed the cross objection to disallow the arrears of rent which was time barred. In the above facts and circumstances, I am of the view that the learned trial court was not justified in allowing the 13 RFA No.22/2013 & CO No.01/2014 claim of arrears of rent for the period beyond three years prior to the institution of the suit which requires to be modified.

23. For the foregoing reasons, the Appeal filed by the Appellant is dismissed. However, the Cross Objection filed by the Respondent is allowed to the extent that instead of a sum of Rs. 1,35,058.00 (Rupees one lac thirty five thousand and fifty eight), the Appellant would be entitled to get the arrears of rent for a period of three years only prior to the institution of the suit, and to this extent the decree of the trial court stands modified.

24. There shall be no order as to the cost (s)

25. A decree be drawn accordingly.

Sd/-

                                               ( Sunil Kumar Sinha )
                                                       Judge

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     RFA No.22/2013 & CO No.01/2014

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