Sultan Singh, J.
(1) This second appeal by the tenant under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') is directed against the judgment and order dated September 22, 1978 of the Rent Control Tribunal whereby an order of eviction under Section 14(l)(e) of the Act was passed against the appellant.
(2) The respondent landlord filed a petition for eviction of the appellant on various grounds. His application was dismissed by the Additional Rent Controller by order dated September 19, 1975. On appeal however as already stated order of eviction was passed only under clause (e) of the proviso to sub-section (1) of Section 14 of the Act. It is not disputed that the respondent is the owner of the suit premises and that the same were let out to the appellant for residential purposes. The only disputes are whether the respondent bona fide requires the suit premises and whether he has no other reasonably suitable residential accommodation. The Tribunal has held that the requirement of the respondent is bona fide and that he has no other reasonably suitable accommodation.
(3) The learned counsel for the appellant contends that the present appeal raises substantial questions of law. He says that the eviction application filed by the respondent does not disclose any cause of action as all the ingredients required to be pleaded and proved by the respondent under section 14(l)(e) of the Act have not been pleaded. His other objection is that the finding of the Tribunal is without any evidence on record.
(4) The ground of eviction under clause (e) as averred by the respondent in para No. 18(a)(i) of the application reads as under ;
'(I)That premises were let for residential purposes and the same are required bona fide by the landlord/petitioner for occupation as residence for himself and for other members of his family and for those dependent upon him and that the landlord is the owner of the premises.'
(5) The appellant-tenant in paral8(a)(i) of the written statement relevant for the purposes of this objection pleads as under :
'(I)Statements made in para 18(a)(i) of the petition are not admitted. It is denied that the petitioner bona fide requires the premises in suit for occupation as residence for himself and for members of his family dependent upon him and that he. has no other reasonably suitable residential accommodation.'
Besides this the appellant pleads that the respondent's family owns three storeyed house in Qasabpura, Delhi where his father, other brothers and family members are residing are where he himself was also residing. The appellant further says that there is sufficient accomodation in the other house for the respondent and his family. I have gone through the written statement and I do not find any specific objection that the eviction petition does not disclose any cause of action. From the judgments of the Additional Controller and the Tribunal it does not appear if any such objection was raised before them. In this second appeal however the appellant has taken this objection.
(6) Pleading and proving of all the ingredients of clause (e) of Section 14(l) of the Act are necessary before an order of eviction can be passed. There cannot be any dispute about it. If all ingredients are not proved, a landlord is not entit!en to an order of eviction. It is also well known that no evidence can be looked into for which no plea was raised in the pleadings. The contention of the appellant is that the respondent did not plead in ins eviction application that he had no other reasonably suitable residential accommodation. But on a reference to the written statement I find that the appellant himself denied that the respondent had no other reasonably suitable residential accommodation. When evidence was being led before the Controller, it appears no objection was raised against recording of the evidence on this aspect of the matter. The question for decision thereforee is whether in these circumstances the respondent is to be non-suited for not pleading one of the material ingredients of clause (e) of Section 14(l) of the Act. As already stated this is second appeal under Section 39 of the Act. No specific objection was taken in the written statement. It was neither argued before the Controller nor the Tribunal. It is entirely a new point in the second appeal which cannot be allowed to be argued.
(7) The learned counsel for the appellant in support of his contention that all ingredients having not been pleaded, the petition is liable to be rejected, relies upon Abdul Hamid and another v. Nur Mohammad, 1976 Rcj 768. In that case it was not pleaded by the landlord that he had no other reasonably suitable residential accommodation. From the report however it is not clear whether any evidence on that fact was available on record or not. In the instant case before me there is evidence that the respondent is not in possession of any residential accommadation except the premises on ground floor of property No. 6273, Qasabpura, Delhi. The facts of that case are thereforee entirely different and do not help the appellant. The Supreme Court in Nedunuri Kameswaramma v. .Sampati Subba Rao, Air 1963 Sc 88 has observed as under :
'WHEREthe 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 pus-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led In the case is sufficient to reach the right conclusion.'
In Bhagwati Prasad v. Chandramaul, : 2SCR286 , it has been observed that 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 exoressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. Again in Union of India v. M/s. Khas Karanpura Colliery Co. Ltd., : 3SCR784 , it has been observed, 'It is true that the pleadings on this point are rather vague; but all the facts necessary for determining that question are before the court. The aspect of the case appears to have been fully argued before the High Court without any objection.'
(8) In such cases what the court has to consider is did the parties know that the matter in question was involved in the trial court and did they lead evidence about it If it appears that the parties did not know that the matter was in issue in the trial court and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. What is further to be determined is whether any prejudice has been caused to the party concerned. In the present case it seems that although the specific plea was not there in the eviction application but the appellant tenant was aware of the question involved between the parties. Thus, it seems to me that the eviction application cannot be thrown out at this stage on this ground. I am further of the view that such an objection cannot be taken at the stage of second appeal. This court in Smt. Kaushalya v. Mantoo and another, 1966 Plr 117, which is a regular second appeal, observed that if a plea is not raised the same was liable to be rejected in the second appeal. In Kanwar Singh v. Maman Chand, 1980 (1) Rcr 678, it was held that in case of bona fide requirement if ingredients required by the Act are not pleaded but the parties lead evidence keeping the ingredients in view, petition for eviction cannot be dismissed for not pleading ingredients as no prejudice was caused to the tenant. In Paramjit Singh and others v. Bawa Gurudas Ram and others, 1978 (2) Rcj 40, ingredients of bona fide were not pleaded in the eviction application and the evidence theron was taken into consideration. The tenant was not allowed to raise such an objection at the revision stage. This court in Hans Dr Raj Dawar and others v. Shri. Shyam Kishore, 1977 (2) Rlr 253, observed that inadequacy of the pleadings was not fatal to the case if no prejudice was caused to either of the parties. Again in Durga Prashad v. Shri. Har Narain, 1979 (1) Rlr 114, it is observed that the absence of pleadings of ingredients do not necessarily result in dismissal of eviction application if parlies knew the point of controversy and no one was taken by surprise. I am, thereforee, of the view that the appellant was not prejudiced by the repondent's failure to plead that he had no other reasonably suitable accommodation for residence.
(9) The next question is whether there is evidence on record in support of the finding given by the Tribunal. The facts are that family of the respondent consists of himself, his wife and eleven children. He has been in possession of the premises on the ground floor of property bearing municipal No. 6273 consisting of one room measuring 12' x 6' store, latrine and bath along with the courtyard. In the written statement the appellant as already stated has taken the plea that the respondent's family own three-storeyed house in Qasabpura where he and his family have been residing. But no evidence in support of this plea in the written statement has been brought to my notice. Before the Rent Control Tribunal the appellant made an application alleging that after the dissmissal of the eviction application and during the pendency of the appeal before the Tribunal the respondent had constructed three floors above the ground floor of property No. 6341, Qasabpura, Delhi. He also asserted that the respondent was in occupation of the same. By that application he prayed that a local commissioner be appointed to visit the said premises and to report about the accommodation therein and the use to which the same have been put by the respondent. The Tribunal vide order dated May 8, 1978 appointed a local commissioner to report what was the accommodation and for what purpose the same was being used and by whom. The local commissioner inspected the premises on May 8, 1978 in the evening. He reports that premises No. 7695, Qasabpura consist of gronnd floor and first floor and the rooms measuring 9' X 10' are being used by the respondent for commercial purposes and for office. He also reports that the ground floor of premises No. 6341 is used as a godown by the respondent and that the first floor and second floor of premises No. 6340 are used for commercial and office purposes by the respondent. During the course of argument it has been brought to my notice that the first floor and second floor of the premises being used for commercial and office purposes bear municipal No. 6341 and not 6340. Similarly it is pointed out by the learned counsel for the respondent that the ground floor of premises used as a godown bear municipal No. 6340 and not 6341. It appears to be a typing mistake in the report of the local commissioner. From the report of the local commissioner it appeared to the Tribunal that the premises at 6340 and 6341 were being used for commercial purpose and there was no accommodation available to the respondent for residential purposes. The appellant filed objection dated May 18, 1978 to the report of the local commissioner wherein the main contention of the appellant was that the first floor and the second floor of the said property were being used by the respondent for residential purposes. The contention is that the seructure of the building and the amenities available therein show that the premises are residential. It is not disputed that the premises are well built and decorated. It is however contended on behalf of the respondent that the said first floor and the secand floor have been used by the respondent for commercial purposes by his firms. The objections to the report of the commissioner are not supported by any affidavit. From the proceedings of the Rent Control Tribunal it appears that the parties were directed to file affidavits in support of the alleged contention of the appellant that the first floor and the second floor of the said property were recently constructed. The appellant's allegation before the Tribunal was that the first floor and the second floor of property No. 6340 and 6341 were newly constructed and for this reason it appears the Tribunal directed the parties to file affidavits to show if plans were got sanctioned. Neither the appellant nor the respondent filed any affidavit deposing if any plans were sanctioned. The learned counsel for the respon. dent however has brought to my notice an affidavit dated September 12, 1978, filed by the respondent wherein it is alleged that the property bearing Nos. 6340 and 6341 is under the tenancy of the respondent taken on rent from the Slum Department of the Delhi Development Authority and that the said Authority has been charging rent at commercial rate from him. It is also deposed by the respondent that the said premises are commercial and have been used for commercial purposes. When this affidavit was filed before the Tribunal opportunity was granted to the appellant to file a counter affidavit. He also filed his affidavit dated September 15, 1978. He states that he is not aware whether the said properties belong to Delhi Development Authority and whether the landlord is a licensee therein. The appellant however asserts that the respondent has been in possession of the said premises, He as a matter of fact has shown his ignorance to the various facts deposed by the respondent.
(10) The learned counsel for the appellant submits that the affidavits of the appellant and the respondent filed in pursuance of the order dated September 11, 1978 of the Tribunal cannot be read into evidence. His argument is that the affidavits are no evidence and under Order 19 Rule 1 of the Code of Civil Procedure these affidavits cannot be treated as substantive evidence in the absence of express order by the Tribunal. It is not necerssary to decide this question in this appeal but assuming that these affidavits are not available for decision of this case, the question arises whether the parties are entitled to lead any additional evidence. The argument is that the appellant has brought to the notice of the court that the first floor and the second floor of the said property are available to the respondent landlord and that the onus is on the respondent to prove that the same is not available to him for residence. Additional evidence can be led under Order 41 Rule 27 of the Code of Civil Procedure if circumstances mentioned therein are made out. In the present case I do not find any ground for allowing the parties to lead any additional evidence. The appellant never raised any objection before the trial court that the first floor and the second floor of the property bearing No, 6341, Qasabpura were available to the respondent for his residence. He made an application before the Tribunal for the appointment of a local commissioner and the local commissioner filed his report after inspection. A party cannot be allowed to lead additional evidence at his will. The court may however allow additional evidence if it requires for the decision of the case. Prima facie there is nothing on the record to show that the first floor and the second floor of the said premises are available to the respondent for residental purposes. Under Order 26 Rule 10(2) of the Code the report of the local commissioner is evidence in the proceedings. Reference to the report of the local commissioner shows that the said premises are being used for commercial purposes, Morever, property Nos, 6340 and 6341 were in existence at the lime when the written statment was filed and thereforee if the appellant has failed to take necessary plea in the written statment and failed to lead any evidence relating thereto he cannot be allowed to lead any further evidence. The respondent has already deposed that he has no other premises for residence except ground floor of property No. 6273, Qasabpura, Delhi.
(11) Thus it seems to me that if the affidavits of the appellant and the respondent as contended by the learned counsel for the appellant are excluded from consideration, there is no evidence on behalf of the appellant to support his allegation that the first floor and the second floor of the said premises are available to the repondent-landlord for residential purposes. Thus, I find that the respondent has no other reasonably suitable residential accommodation for his residence except the ground floor of property No. 6273, Qasabpura, Delhi. There is no allegation of any oblique motive. I, thereforee, hold that the Rent Control Tribunal on the basis of evidence on record was justified in passing the order of eviction against the appellant under Section 14(l)(e) of the Act. There is no merit in the appeal. The same is dismissed with no order as to costs. The appellant is however granted one month time to vacate the premises.