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Vijaya N. Vithal Vs. M. H. Talageri - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1399 of 1982
Judge
Reported inILR1985KAR2316
ActsCivil Prodedure Code , 1908 - Sections 21(1) - Order 6, Rule 2
AppellantVijaya N. Vithal
RespondentM. H. Talageri
Appellant AdvocateJ.S. Gunjal, Adv. for ;Ajith J. Gunjal Adv.
Respondent AdvocateR.S. Chakrabhavi, Adv.
Excerpt:
.....on the question can be only a mere irregularity, which did not result in any prejudice to the tenant.;the landlord cannot be denied the relief merely on technical ground that he has not fully incorporated in the petition the ingredients of the ground under clause (p) of section 21(1) of the act. the alleged defect has not resulted in introducing either an element of surprise or caused prejudice to the tenant. - karnataka transparency in publicprocurements act, 1999.[k.a. no. 29/2000]. section 3: [anand byrareddy, j] forestry operations of logging -contract system tenders inviting to assign labour work from labour co-operative societies requiring them to quote lowest rates - held, the proposed allocation defeats national forest policy and is not sustainable. - the opponent is a..........section 50 of the act. while confirming the findings of the trial court on both the grounds, the district judge, purporting to act under order 7 rule 11 of the c.p.c., rejected in the first instance the land-lord's petition under clause (p) of section 21(1) of the act on the ground that the eviction petition did not disclose the cause of action for the petition on that ground.4. aggrieved by the order of the district judge in reversing the eviction order passed by the trial court on the ground under clause (p) of section 21(1) of the act, the landlord has preferred c.r.p. no. 1399 of 1982. on the other hand the tenant being aggrieved by the order of the district judge, in so far as he has concurred with the.findings of the trial court, has preferred c.r.p. no. 1068 of 1982.5......
Judgment:
ORDER

Hakeem, J.

1. These four Revision Petitions are the off shoots of a single eviction proceeding between the same parties; and since common questions of facts and law are involved these are heard together and disposed of by this common order.

2. The brief facts necessary for the purpose of disposal of these matters are as follows:

'The landlord filed an eviction Petition in H.R.C. No. 94 of 1978, in the Trial Court seeking eviction of the tenant from the residential premises in question on the grounds under Section 2(1)(1) and (p) of the Karnataka Rent Control Act,1961 (the Act). Upon appreciation of the evidence, while rejecting the landlord's claim for possession of the premises on the ground under Section 21(l)(h) of the Act, the Trial Court allowed the eviction Petition on the ground under clause (p) of Section 21(1) of the Act.'

3. Aggrieved by the Trial Court's order the parties preferred Revision Petitions under Section 50 of the Act. While confirming the findings of the Trial Court on both the grounds, the District Judge, purporting to act under Order 7 Rule 11 of the C.P.C., rejected in the first instance the land-lord's Petition under clause (p) of Section 21(1) of the Act on the ground that the eviction Petition did not disclose the cause of action for the Petition on that ground.

4. Aggrieved by the order of the District Judge in reversing the eviction order passed by the Trial Court on the ground under clause (p) of Section 21(1) of the Act, the landlord has preferred C.R.P. No. 1399 of 1982. On the other hand the tenant being aggrieved by the order of the District Judge, in so far as he has concurred with the.findings of the Trial Court, has preferred C.R.P. No. 1068 of 1982.

5. Subsequently by the order dated 8th April 1983 the District Judge has on a consideration of the review Petition (Misc. 60 of 1982) filed by the landlord under Order 47 Rule 1 of the C.P.C. rejected the entire H.R.C. Petition No.94 of 1978 on the view taken by him that there cannot be partial rejection of the Petition under Order 7 Rule 11 of the C.P.C. for the alleged non-disclosure of cause of action. This has given rise to C.R.P. No. 2123 of 1983 by the tenant on the ground that the District Judge acted with material irregularity in entertaining the landlord's review Petition as there was no sufficient cause to condone the delay in filing it. The landlord has filed C.R.P. No. 2934 of 1983 questioning the validity of the same order, whereby, while purporting to allow his re-view Petition, the District Judge has rejected the entire eviction Petition.

6. The only question that really arises for consideration in these matters is whether in the facts and circumstances of the case the Court below was justified in rejecting the land-lord'seviction Petition on the ground under Section 21(1)(p) of the Act, for want of adequate pleading and alleged non-disclosure of the cause of action for eviction of the tenant on the said ground.

7. Mr. J. S. Gunjal, Learned Counsel for the landlord, contended that the Learned District Judge committed an error in law in reversing the order of the Trial Court and rejecting the eviction Petition itself on the ground that it did not disclose the cause of action for eviction of the tenant under Section 21(1)(p) of the Act. The District Judge having fully concurred with the findings of fact establishing the landlord's claim on the said ground, ought to have con-firmed the Trial Court's order of eviction. On the other hand, Mr. R. S. Chakrabhavi, Learned Counsel for the tenant, has urged that the finding of the Courts below in favour of the landlord in respect of his case under clause (p) of Section 21(1) of the Act is untenable. In any event the District Judge seriously erred in rejecting the entire Petition, as it has set at naught the concurrent findings of both the Courts below on the ground under clause (h) of Section 21(1) of the Act, as a consequence of which the bar of res judicata created by virtue of Section 45 of the Act has been removed. He has further contended that if all the ingredients of the ground for eviction under the Act are not specifically pleaded, the Petition is liable to be rejected for non-disclosure of cause of action under Order 7 Rule 11 of the C.P.C.

8. To appreciate the rival contentions, it is necessary to examine the averments in the pleadings. The averments regarding the landlord's case for eviction under clause (p) of Section 21(1) of the Act are set out in para-4 thereof as under.

' The opponent is a well to do person and he has recently acquired in the same locality the properly bearing C.T.S. No. 36A/5A. He has purchased the said properly in the year 1974for a consideration of Rs. 21,000/- from its owner Smt. Sharadabai Ranappa Naik. The property purchased by the opponent is a residential house and it is spacious.'

In his objection statement, while admitting the fact of having acquired vacant possession of a residential property, the tenant has stated that it was not suitable for his occupation. He has further stated that in order to meet certaincontingencies he had to sell his property and parted with possession thereof. The landlord thereupon filed a reply or replication in the form of an application under Order 8 Rule 9 of the C.P.C., inter alia stating therein that the tenant had acquired vacant possession of another property referred to above, which was suitable for his residence.

9. It is seen that the landlord's replication was filed and (July received by the Trial Court on 5th July 1979 without any demur by the tenant. It is not disputed, and indeed cannot be disputed, that replication can be filed with the leave of the Court and such leave can be an oral one. In the circumstances of this case grant of an oral leave by the Court to file the said reply can be safely assumed. It is only before the District Judge in revision that the tenant raised the plea for the first time that the said application could not be relied upon in the absence of a specific leave being sought and granted, and hence it cannot cure the defect viz., the alleged non disclosure of cause of action, in the original Petition itself.

10. It is not disputed that by the time the replication was filed the whole case under clause (p) of Section 21(1) of the Act was fully known to the tenant and the case was later on contested on that ground. Replication is a part of the pleadings. Hence, the tenant cannot legitimately complain that he did not know what case he was called upon to meet. The parties proceeded to lead evidence on the basis of the landlord's claim under Section 2l(l)(p) of the Act with the full knowledge as to the specific issue involved in the case The tenant having fully availed himself of the opportunity to adduce evidence, absence of a specific plea in the original Petition on the question can be only a mere irregularity, which did not result in any prejudice to the tenant. On the admitted and established facts both the Courts have found that the tenant had in fact acquired vacant possession of a suitable premises with the intention of occupying the same himself.

11. It appears to be well settled that even if the plea has not been specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.

12. In Finn Sriniwas Ram - v. - Mahabir Prasad : [1951]2SCR277 , the Supreme Court dealing with the scope and ambit of Order 6 Rule 2 of the Code of Civil Procedure observed thus :

'...The rule undoubtedly is that the Court cannot grant relief to the plaintiff' on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff, a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings.. In such circumstances when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.'

13. In Kedar Lal - v. - Hari Lal : [1952]1SCR179 Vivian Hose, J. speaking for the Court observed thus :

'I would be slow to throw out a (sic)laim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.'

14. In Bhagawati - v. - Chandramaul : [1966]2SCR286 while emphasizing the importance of pleadings which leads to the framing of the issues and the trial in every civil case, the Supreme Court has observed that cases may occur in which though a particular plea is not specifically taken or included in the issues, the parties might know that in substance the said plea is being tried and might lead evidence about it. In such cases where the Court is satisfied that the ground on which reliance is placed by the one or the other of the parties was in substance at issue between them and that both of them have had opportunity to lead evidence about it at the trial, that formal requirement of the pleadings can be relaxed. In this context Gajendragadkar, Chief Justice, speaking for the Court has observed thus :

' But in considering the application of this doctrine to the facts of the present case, it is necessary to hear in mind the other principle that considerations of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both the parties to the suit are touched, though indirectly or even obscurely in the issues and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial and did they lead evidence about it If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that un' doubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce considerations of prejudice and in doing justice to one party, the Court cannot do injustice to another.'

15. Mr. Chakrabhavi relied upon the decision of the Supreme Court in Onkar Nath - v. - Ved Vyas : AIR1980SC1218 . It is a case where there was not merely in adequacy of pleadings sufficient to make out a cause of action but 'total absence of proof of two vital requirements. In the instant case it has been established by acceptable evidence that the tenant acquired vacant possession of a suitable building. Hence, the ratio of the said decision is not applicable to the facts and circumstances of thiscase.

16. Mr. Chakrabhavi further relied upon a decision of the Punjab and Haryana High Court in Banke Ram - v. -Sarasti Devi . In the said case the High Court while dealing with the scope and ambit of Section 13(3)(g) of East Punjab Urban Rent Restriction Act, 1949, has held that the land-lord applying for eviction of the tenant on the alleged ground has to specifically plead in his application the contents of sub-paragraphs (b) and (c) under Section 13(3)(2) of the said Act, which puts a rider on the right of the landlord to get eviction of his tenant from the premises for his own use and occupation. The said provisions beside not being in pari materia with Section 21(l)(p) of the Act, it is clear that the facts and circumstances of the said case were also different. As such the ratio of the said decision is also not applicable to the instant case.

17. It appears to to me that in the facts and circum-stances of the case the Learned District Judge misdirected himself in invoking the provisions of Order 7 rule 11 of the C.P.C. and rejecting the landlord's eviction petition for the alleged non-disclosure of the cause of action under Section 21(1)(p) of the Act for eviction of the tenant on the said ground. The District Judge proceeded to consider the merits of the landlord's case for eviction under Section 21 (1)(p) of the Act. Upon re-appraisal of the evidence the District Judge fully concurred with the findings of the Trial Court in holding that on the admitted and established facts the tenant was liable to be evicted on the ground under Section 21 (1)(p) of the Act.

18. As regards the concurrent findings of both the Courts, there is no doubt that it is a question of fact and since the two Courts below have found against the tenant on this issue, this Court would not ordinarily interfere with them to re-appreciate the evidence in its revisional jurisdiction under Section 115 of the C.P.C. unless there are exceptional circum-stances justifying a departure from the normal practice.

19. In my opinion, therefore the landlord cannot be denied the relief merely on the technical ground that he has not fully incorporated in the petition the ingredients of the ground under Clause(p) of Section 21(1) of the Act. I am, satisfied that the alleged defect has not resulted in introducing either an element of surprise or caused prejudice to the tenant.

20. In the result Civil Revision Petition No. 1399 of 1982 and Civil Revision Petition No. 2934 of 1983 filed by the. landlord are allowed. The order of the District Judge, Dharwad, in C.R.P.No. 12 of 1981 as well as his order dated 8th April 1983 in Misc. case No. 60 of 1982, in so Far as it has reversed the order of eviction passed by the Trial Court on the ground under Section 21(1)(p) of the Act, is set aside. Consequently the order of the Trial Court allowing the landlord's petition for eviction on the ground under Clause (p) of Section 21(1) of the Act, is restored and confirmed.

C.R.P.No. 1068 of 1982 and C.R.P.No 2123 of 1983 are dismissed. The tenant is granted six month's time to vacate and deliver possession of the premises to the landlord.


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