Rajasthan High Court - Jaipur
Chandra Kumar vs Smt. Kanku Bai And Ors. on 6 May, 1991
Equivalent citations: 1991WLN(UC)324
JUDGMENT Milap Chandra Jain, J.
1. This appeal has been filed against the judgment of the learned Additional District Judge No. 2, Udaipur dated March 14, 1989 by which he has allowed the appeal of the plaintiff-respondents and set aside the judgment of the learned Additional Civil Judge, Udaipur dated January 28, 1982, dismissing the suit or ejectment. The facts of the case giving rise to this appeal may be summarised thus.
2. On September 15, 1976, the plaintiff Manak Chand filed a suit for the ejectment of the defendant Chandra Kumar with these allegations. He owns a house situated in Mandi-ki-Naal, Udaipur. On December 5, 1974, it was let out to the defendant on monthly rent of Rs. 65/-. On December 12, 1974, rent note was executed in his favour by the defendant. He has not paid rent since December, 1975. The suit house is reasonably and bonafide required by him for the residence of his family. His grand son Laxmilal who is reading in 8th Class in the village is to be shifted therefrom for admission in higher class as the village school has no Science subject in IX class. The business which his sons Dhanraj, Ramlal and Tejpal are carrying in the village has considerably gone down, they want to start their business in Udaipur City and he does not own or possess any house in Udaipur except the suit house for their residence in Udaipur. The defendant has effected material alterations in the suit house by placing tin-sheds without his consent. He has also started using the suit house for the commercial purpose. He has not vacated it dispite several demands and registered notice. The defendant admits in his written-statement that he is in possession and occupation of the suit house as a tenant and he has duly received notice of ejectment. The remaining allegations of the plaint have been traversed. He has further averren that he tendered the rent personally and on refusal remitted it by money order, the plaintiff wants to enhance the rent to Rs. 100/-per month, his son Ram Chandra lives and carries on business separately from him, the rent was initially Rs. 26/- per month, it was subsequently enhanced and he has installed the printing press since the beginning, notice of ejectment is not valid, amount of rent determined under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called 'the Act') has duly been deposited, the monthly rent is being regularly deposited, if the decree for ejectment is passed against "him he would greatly suffer as there is no other source of income for him and the nature of business which his sons want to start at Udaipur has not been disclosed. The trial court framed six issues. After recording the evidence of the parties and hearing them, the learned Additional Civil Judge dismissed the suit holding that the suit premises is not reasonably and bona fide required by the plaintiff, the defendant would suffer greater hardship if the decree for ejectment is passed, it is not proved that the defendant has started using the suit house for commercial purpose, no material alteration has been effected in it and the ground of default has ceased to exist as amount of rent and interest determined under Section 13(3) of the Act was duly deposited in time and amount equivalent to monthly rent was being regularly deposited. The plaintiff-respondent filed an appeal. It was heard and decided by the learned Additional District Judge No. 2, Udaipur. The learned Additional District Judge agreed with all the aforesaid findings of the trial court. However, it has allowed the appeal and has decreed the suit for ejectement on the ground that the defendant has acquired vacant possession of a house in Sector No. 11, Hiran Magri, Udaipur.
3. The respondents have filed cross-objection against the findings on the issues which have been decided against them.
4. It has been contended by the learned Counsel for the defendant-appellant that the learned first appellate court was not at all justified to decree the suit for ejectment simply on the ground that the defendant has constructed a house in a Sector No. 11, Hiran Magri, Udaipur. He contended that there is neither any pleading nor any issue on this point, this ground of ejectment was not a subject matter of arguments before the trial court as well as before the first appellate court, no opportunity was given to the appellant to explain his admission, no application for the amendment of the memorandum of appeal before the first appellate court was even moved, Clause (i) of Sub-section (1) of Section 13 of the Act is not attracted as the suit house was not let out for residential purpose, even according to the first appellate court the suit house was let out for commercial use i.e. for running printing press, the printing press is in the suit house since the beginning and several rent receipts have been issued by the plaintiff-respondent in the name of Vardhman Printing Press inrespect of the suit house. He relied upon Trojan & Co. v. RM N.N. Nagappa Chattiar , Tribhuwan kumar v. Gita Ram Kalsy 1986 (1) R.C.J. 479 (P & H), Santlal v. Harbans Singh 1972 R.L.W. 657, Dr. Gopal Doss Verma v. Dr. S.K. Bhardwaj , S. Kartar Singh v. Chamnlal .
5. In reply, it has been contended by the learned Counsel for the plaintiff-respondent that the defendant himself has unequivocally admitted in his cross-examination that he has constructed a chuse in Sector No. 11, Hiran Magri, Udaipur, admission is the best evidence, the purpose and object of the pleadings is to give notice to the other party and there arises no question of giving notice to a party about a fact which he himself unequivocally admits. He contended that the learned appellate court has rightly decreed the suit on the basis of the defendant's admission, admission is the best kind of evidence, and even in the memorandum of appeal of the second appeal it has not been alleged that this admission was made in ignorance of rights or correct position. He further contended that Clause (1) of Sub-section (1) of Section 13 of the Act is fully at racted in this case as admittedly the defendant resides in the suit house since the beginning and he has constructed a house in Sector No. 11, Hiran Magri, Udaipur. He also contended that it is incorrect that rent receipt was issued by the plaintiff in the name of the Vardhman Printing Press. He contended that the plaintiff in his notice Ex. 2 clearly stated that the suit house was letout for residential purpose, in the reply Ex. 4 it was not stated that it was taken for running a printing press and not for the residential purpose, it was also not so pleaded in the written statement and on the countrary, it has been repeatedly said by the defendant Chandra Kumar DW 1 in his statement that the suit house was taken on rent for running printing press. He further contended that it is well proved from the evidence on record that the defendant has put the suit premises to a purpose which is inconsistent to the purpose for which he has admitted to the tenancy. He also contended that the learned lower courts have seriously erred to hold that the suit premises is not reasonably and bona fide required, the plaintiff would not suffer greater hardship if the decree for ejectment is not passed and there is no question of partial eviction. He relied upon K. Krishna Nair v. Valliammal A.I.R. 1949 Madras 785 para 3, Dr. M. Chacko v. Yeditha Seshamma 1971 R.C.J. 374 (A.P.), Mohanlal v. Bodhraj Malhotra, 1974 R.C.J. 43, Ram Jiwan v. Om Prakash 1977 (2) R.C.R. 82, Rupalochani Sarswathi Ammal v. Sundaranarayan 1984 (2) R.C.R. 267, Pasupaleti Venkateswarlu v. The Motor and General Trades .
6. The following substantial question of law arises in this appeal:
Whether the first appellate Court seriously erred in decreeing the suit for ejectment on the ground mentioned in Clause (i) of Sub-section (1) of Section 13 of The Rajasthan Premises (Control of Rent & Eviction) Act, 1950 without any pleading and issue, simply on the basis of the admission of the defendant and all his witnesses that a* residential house in Sector 11, Hiren Magri, Udaipur has been constructed by him (Defendant)?
7. In the cross-examination, the defendant admists that he purchased a plot in Sector 11, Hiran Magri, Udaipur from the Housing Board, he has constructed a house on it and it is lying vacant. His witness Mahavir Prasad DW 2 has stated in his cross-examination that the defendant has constructed a residential building consisting of three rooms and kitchen on half portion of his plot situated in Sector No. 11, Hiren Magri, Udaipur. Similarly, Mahavir Prasad Mithda DW 3 has deposed that the defendant has constructed a house on half portion of his plot situated in Hiren Magri, Udaipur consisting of 3 rooms, kitchen, bathroom, latrine and chowk. Santoshlal DW 4 has also deposed that the defendant has constructed or house on his plot-situated in Hiren Magri, Udaipur. It is thus well proved from the defendant's own evidence that he has constructed a residential building consisting of three rooms, chowk, latrine, bathroom and kitchen on half portion of his plot situated in Sector No. 11, Hiren Magri, Udaipur.
8. Section 13(1)(i) of the Act runs as under:
13 Eviction of tenants - (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied-
(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence or.
9. The first contention of the learned Counsel for the defendant-appellant has been that in the absence of the pleadings and issue on this point, the first appellate court was not justified to decree the suit on this ground. In Ram Swaroop Gupta v. Bishun Narain Inter College , it has been observed that the object and purpose of pleading is to enable the adversory to know the case it has to meet and whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleading, instead the court must find out whether in substance the party knew the case and the issue upon which they went to trial.
10. It has been observed in Ganesh Trading Company v. Moji Ram , as follows:
Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular causes of action must take.
11. It has been observed in Sriniwas Ram v. Mahavir Prasad as follows:
The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft, in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft, himself makes. A demand of the pltf. based on the deft's own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. In his pleadings. In such circumstances when no injustice can possibly result to the deft, it may not be proper to drive the pltf, to a separate suit.
12. In Trojan & Co. v. RM.N.N. Nagappa Chettiar , there was no such admission. It is a judgment given by Hon'ble Judges while the judgment reported in Sriniwas Ram Kumar v. Mahabir Prasad , is of three Hon'ble Judges. Motilal Banker v. Maharaj Kumar Mahmood Hasan Khan , relates to an execution petition. In Tribhuwan Kumar v. Gita Ram Kalsy 1986 (1) R.C.J. 479 (P & H), admission was not held to be proved.
13. In the lenghty memorandum of appeal filed in this Court there is not the slightest indication that the said admission made by the defendant regarding the construction of a house in Sector No. 11, Hiren Magri, Udaipur was erroneous. It has been observed in Narayan v. Gopal "An admission is the best evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous". It is stated in ground No. 6 of the memorandum of appeal that if the suit for ejectment had been sought on the ground of construction of a house in Sector No. 11, Hiren Magri, Udaipur, the defendant would have shown that the house was not suitable for residence, it is not in his possession and on this basis he could have filed suit for ejectment against his (defendant's) tenant. As already observed above, the defendant has categorically admitted in his cross-examination that the house constructed by him in Sector No. 11, Hiren Magri, udaipur is lying vacant. Admittedly, it consists of three rooms. The defendant has disclosed in his cross-examination that one room only of the suit house is being used for the residence of his family including himself and its remaining portions are being utilised in running his printing press. In this state of evidence, it cannot be said that the newly constructed house is not suitable for residence. It has been stated in para No. 2 of the cross-objection that the defendant has even performed the marriages of his son and daughter on May 6, 1989 from this newly constructed house. A photostat copy of the invitation card has been enclosed with it. This fact was not denied during the arguments. When the marriages of son and daughter could be celebrated from the said newly constructed house, it cannot be said that it is not suitable for residence.
14. The parties went to trial fully knowing this point. Plaintiff Dhan Raj PW 2 categorically stated in his examination-in-chief that the defendant has constructed his house on plot No. 238, Sector No. 11, Hiren Magri, Udaipur. As already observed above, the defendant and all his witnesses were duly cross-examined and all of them admitted the construction of the said house. It has been observed in Nedunuri Kameswaramma v. Sampati Subba Rao as follows:
No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the guidance which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case, to which we have amply referred already.
In view of these facts, circumstances and authoritative observations, non-framing of an issue on this point will not result in the dismissal of the suit.
15. The next contention of the learned Counsel for the defendant has been that the suit house was taken for running a printing press therein and not for the purpose of residence and as such the said Clause (i) of Section 13(1) of the Act is not applicable. Thus the question for consideration is whether the suit house was let out for the residential purpose or for running a printing press. It is the admitted case of the parties that the suit house is situated in a residential locality, various rent-notes were executed by the defendant in respect of the suit house and in no rent-note the purpose of letting was mentioned. It is in the form of a house and not in the form of a shop, showroom, hall or a factory. It is stated in ground N.9 of the memorandum of the second appeal that the land-lord (plaintiff-respondent) has issued numerous rent receipts to the appellant in the name of his business Vardhman Printing Press also. Admittedly, not a single receipt issued in the name of Vardhman Printing Press has been filed. Before the institution of the suit, the plaintiffs served notice of ejectment upon the defendant whose copy is Ex.-2. It has been admitted by the defendant. It is specifically stated in it that the defendant took the suit house for the purpose of residence and it is being utilised for the purpose of business. In reply, Ex.-4, it has been stated that this averment is not correct. It has further been stated in it that the defendant is running his Printing Press since the year 1958, he is also residing in it and the plaintiff is well aware with these facts. It is not stated in it that the suit house was taken by him for the purpose of his business or for running his press in it as has been said so repeatedly in his statement. Even in paras No. 9 and (da) of the additional pleas of the written statement, it has not been specifically pleaded that the suit house was taken on rent for running printing press. It has simply been averred in them that the press is being run in it since the begining and the plaintiff is well aware of it.
16. The plaintiffs No. 1/4 Ram Chandra PW 1 and No. 1/6 Dhanraj PW 2 have deposed that the suit house was taken on rent for the purpose of residence. Admittedly, the defendant was inducted in the suit house as a tenant by the landlord Manak Chand (Original plaintiff). He died before the evidence commenced in the case. The defendant Chandra Kumar DW1 admits in his cross-examination that he put jafri in the suit house with the permission of the landlord after about 4-6 months of taking it on rent and tin sheets after two months. In the cross-examination, he further disclosed that since the beginning the machines of the printing press were being operated by electric power. He denied the suggestion in the cross-examination that there was no electric or power connection in the suit house for three years of his taking it on rent. His witness Mahavir Prasad DW 2 disclosed in his cross-examination that the suit house had no electric or power connection when it was let out to the defendant. Mahvir Prasad Mithda DW 3 has deposed that the tin-shed was place in the suit house after about 1-2 years of the commencement of the defendant's tenancy. He could not tell whether the electric or power connection existed in the suit house when it was taken on rent by the defendant. The defendant disclosed in his cross-examination that he obtained electric connection in the name of his Vardhman Printing Press and denied the suggestion that electric connection was taken after three years of the commencement of the tenancy. He disclosed in his cross-examination that he can file the bill of the first machine purchased by him, he duly made entries in his account books and he cannot produce them as they are not with him. He further disclosed that he cannot produce a copy of the first electric bill after obtaining from the power house. He has further disclosed in his cross-examination that he lives alongwith his family in one room of the suit house and the reamining two rooms and Ors. portions of the suit house are utilised for running printing press. His witness Mahavir Prasad D W 2 deposed that the suit house consists of three rooms, there is a printing machine in one room and in the remaining two rooms the defendant resides alongwith his family. He has further deposed that necessary articles of the press are placed in the tin shed which has a jafri and the defendant has put four tin-sheets over the printing machine. Mahavir prasad Mithda DW 3 has deposed that the two rooms of the suit house are utilised for the purpose of residence and the remaining one room is used for the purpose of press. He has further disclosed that the articles of the press are kept in the tin-shed which was put after about one or two years of the commencement of the tenancy. Santosh Lal DW 4 has deposed that the composition work of the printing press is being done in the tin-shed since the start of the printing press. It is thus well proved from the defendant's own evidence that the tin shed did not exist when the suit house was taken on rent and the goods of the press are kept and composition is done in the tin-shed since the start of the printing press. Thus the printing press was not started when the suit house was taken on rent. It was started after tin-shed and jafris were put and admittedly they were put after several months. The best evidence to prove the date of the installation of printing press in the suit house would have been a copy of the declaration furnished under Section 4, Press and Registration of Books Act, 1967 which is itself admissible in evidence under Section 7 of this Act. All these facts and circumstances leave no manner of doubt that the suit house was let out by the plaintiff to the defendant for the purpose of residence and not for running printing press. Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj , relates to a case governed by Delhi Rent Control Act and residential premises were also used with the consent of the landlord for professional purpose. In Section Kartar Singh v. Chatnan Lal and Ors. , premises were let out for residential and professional purposes. As such both these cases do not help the appellant.
17. There is yet another aspect of the matter. Issue No. 4 was whether the defendant is utilising the suit house for running printing press instead of residing in it. Both the lower Courts have concurrently held that the defendant is residing in the suit house and has accordingly decided the issue in favour of the defendant. It is also the admitted case of the defendant that he is still residing in the suit house alongwith his family. This also supports the above conclusion that the suit house was let out for the purpose of residence and not for running a printing press. Thus the above question is decided against the defendant-appellant.
18. Both the low Courts have concurrently held that the suit house is not reasonably and bona fide required by the plaintiffs, they would not suffer greater hardship if the decree for ejectment is not passed, there is no question of partial eviction and the defendant has not put the suit house to an inconsistent purpose. These are findings of fact. Second appellate Court has no jurisdiction to interfere with the findings of fact howsoever grossly erroneous they may be, unless there is error of law vitiating the findings of fact. It has no jurisdiction to reappraise the evidence or find out what is the weight of evidence on a particular point.
19. Admittedly, the defendant's half plot is lying vacant. He can raise construction there according to his need. Thus there is no force in the appeal and the cross-objection.
20. Consequently, the appeal is dismissed with costs. The cross-objection is also dismissed,
21. The defendant is given time upto December 31, 1991 to vacate the suit house and to deliver its actual and physical possession to the plaintiff on the condition that he deposits the entire arrears of rent and mesne profits upto July 31, 1991 and costs of all the three Courts in the bank account of the plaintiffs and furnish an undertaking in the trial Courts to the effect that during this period he will not part with the possession of the suit house and will deliver its actual and physical possession to the plaintiff by or before December 31, 1991, both within one month. The plaintiffs will furnish the particulars of their bank-account within three weeks from today through registered letter.