Sultan Singh, J.
(1) This is tenant's appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') against the judgment and order of the Rent Control Tribunal dated 26th April, 1979 by which it accepted the landlady's appeal from the order of the Additional Controller dated 10/2/1975 and passed an order of eviction against the appellants. The landlady-respondent brought an eviction petition on grounds mentioned in clauses (a), (e) and (b) of the proviso to Sub-section (1) of Section 14 of the Act. The Additional Controller dismissed the eviction petition. The landlady filed an appeal before the Tribunal. The order of the Controller was set aside and an eviction order under section 14(1)(e) of the Act was passed on 26th April, 1979. The learned counsel for the appellants raises three questions in this appeal: 1. The eviction application does not disclose any cause of action.
(2) The premises were not let for residential purposes but were let and used both for residential and commercial purposes.
(3) The landlady does not require bonafide the demised premises and she has suitable accommodation on first floor. The learned counsel for the landlady in reply submits that the tenant, neither raised any plea in the written statement that the eviction petition did not disclose any cause of action, nor such an objection was ever argued either before the Controller or the Rent Control Tribunal. He further submits that such an objection cannot be allowed to be urged in second appeal because the respondent had no notice previously and if an objection had been taken in the first instance, the respondent could have removed the objection, by amendment of pleadings or otherwise. He further says that the appellants never raised any objection at the time of recording of evidence, that evidence on all the ingredients of Section 14(1)(e) of the Act has been recorded at the instance of both the parties and the appellants have always been aware of the case set up by the landlady under clause 14(1) (e) of the Act. He further submits that no appeal lies as no substantial question of law is involved. On merits, he submits that the premises were let out for residential purposes alone in accordance with the rent notes executed by the predecessors of the appellants, that the landlady bonafide requires the suit premises and that she has no other reasonably suitable accommodation.
(4) For deciding the question involved in this appeal the relevant facts are: Thakur Dass, predecessors of the appellants was the owner of the suit property He was father of Kundan Lal and Roshan Lal. Kundan Lal was the predecessor of appellants No. 1 to 5. Thakur Dass on 3/6/1942 sold the suit: property to one Pyare Lal by means of the sale deed Ex. AX/4. He and his son Kundan Lal attorney to Pyare Lal and executed two rent notes Ex. AX/1 and Ex. AX/2, on 3/6/1942. By these rent notes the premises now in dispute were taken on rent by Thakur Dass and Kundan Lal for their own residence Pyare Lal sold this property to Jawainda Mal by means of a registered sale deed dated 24/10/1943. Jawainda Mal executed a release deed dated 28/1/1947 with respect to the suit property and his other proper ies in favor of his daughter-respondent-landlady who thus became owner of the property. The respondent's husband is R.N. Chadha. It appears that the respondent's husband suffered an attack of Coronary Thrombosis with acute myocardial infraction on 23/11/1964 and he was hospitalised for about three weeks at Sir Ganga Ram Hospital. He was advised by the doctors that it was inadvisable for him to climb stairs. It may be mentioned that the respondent landlady with her husband has been in occupation of the first floor of the suit premises. She accordingly filed a petition under Section 9 of the Slum Areas (Improvement and Clearance) Act, 1956 and the Competent Authority by order dated 5th April, 1966 granted the permission. In pursuence of this permission the present eviction proceedings out of which the second appeal has arisen, were initiated by the respondent-landlady on 2/3/1972 on ground of bonafide need, non payment and acquisition of other premises i.e. under clauses (e),(a) and (h) of the proviso to Section 14(l) of the Act. The evection petition was filed against Kundan Lal, and Roshan Lal, sons of Thakur Dass. his two sons became tenants. The monthly rent mentioned in the two rent notes was Rs 20.00 each. The respondent treated the two tenancies as one She claimed rent at Rs. 40.00 per month and there is no dispute that the appellants used to pay the same to her. There is no plea that the terms of tenancy were ever changed since the inception of tenancy in June, 1942. Kundan Lal died in may. 1972 during the pendency of the eviction proceedings and thereforee appellants No. 1 to 5 being the widow, sons and daughter of the deceased were substituted. The respondent-landlady in her eviction petition claims possession of the property on ground of bonafide requiretment, which is now the only surviving ground of eviction. She pleads that her husband is not keeping well as disclosed in the medical certificates attached to the petition, that she is the owner and she requires the suit premises which are on the ground filoor, bonafide for herself and for her husband Appellant Nos. 1, 2 and 5 in their written statement deny the claims of the respondent-landlady and plead that the tenancy premises have always been used for residance and commercial purposes since the inception of the tenancy, that Kundan Lal was a lawyer and he had been running an office in a portion of the suit premises and that the landlady does not require the premises and that she has been in occupation of sufficient accommodation. The Additional Controller dismissed the eviction petition holding that the premises are not proved to have been let out for residential purposes He further held that the landlady required the premises in as much as she was living with her husband on the first floor and her husband was suffering from heart disease and it was in the interest of the health of the husband that the landlady should lived in the ground floor premises. The ground under clause (h) of Section 14(1) of the Act was negative on the ground that Rohan Lal admittedly had not acquired any other residence. The ground of non-payment was not pressed before the Controller. The respondent landlady filed an appeal under Section 38 of the Act before the Tribunal. The Tribunal permitted the respondent-landlady to lead additional evidence to prove the said original rent notes executed by Kundan Lal Thakur Dass Ex. AX/1 and Ex. AX/2. These have been duly proved in accordance with law. The Tribunal after considering the evidence on record held that the premises were let for residential purposes, that the landlady bonafide needed the demised premises and that she was not in possession of reasonably suitable residential accommodation for her on account of health reasons. Hence this second appeal by the tenant-appellants. Letting Purpose : To determine whether the premises were let for residential purpose, there are two rent notes executed by the tenants on 3/6/1942. These rent notes recite that the premises were taken on rent for residential purpose. The case of the appellants is that a portion of the suit premises has always been used as an office of a lawyer. Admittedly, Kundan Lal was a lawyer. He died before the recording of the evidence. His son is also alawyer. No heir of Kundal Lal appeared as a witness to support their case that any portion of the suit premises was used as a lawyer's office. No documentary evidence to show that any part of the premises was ever used as alawyer's office was placed on record by the appellants. Oral evidence was produced on behalf of the appellants and they depose that some portion of the premises was used as a lawyer's office by Kundan Lal before he shifted his office to the Supreme Court Chambers. This oral evidence is of no valve. What is to be determined is for what purpose the premises were let initially i.e. in 1942. No evidence has been led on behalf of the appallants that the premises were let for residential-cum-non residential purposes On the contrary there is documentary evidence. If conclusively proves that the premises were let for residential purposes. It was argued by the learned counsel for the appellants that the finding to the effect that the premises were let for residential purposes is perverse. I do not agree. There is documentary evidence and oral evidence; to show that the premises were let for residential purposes. The only evidence; led by the appellants is about the using of the premises as a lawyer's office, that evidence is of no value because the documentary evidence which was available with the heirs of Kundan Lal was never produced and no witness amongst the heirs of Kundan Lal ever entered into the witness box. In any case the oral evidence produced by the appellants about user of the premises docs not inspire any confidence in the fact of the two rent notes. I, thereforee, hold that the finding returned by the Tribunal that the premises were let for residential purpose is supported by documentary and oral evidence on record and that it is not perverse.
(5) Bona Fide Requirement : Learned counsel for the appellants contends that the landlady's husband had heart trouble in November 1954, she took proceedings to obtain permission under the Slum Areas (Improvement & Clearance) Act with a view to institute the eviction proceedings but she filed the present eviction case in March, 1972. This late filing according to him shows that she never required the premises. He further says that there have been various tenants on the ground floor premises. One portion was vacated a number of times since November, 1964 when the landlady's husband had a first heart attack but she had been letting out the same in 1965, 1969 and 1975. From the evidence on record and finding returned by the Tribunal it is apparent that the landlady's husband suffered heart trouble in November, 1964 and that he suffered two attacks in 1972. The respondent's husband was admitted in the hospital on 6/3/1972 and the present petition was filed on 2/3/1972. It shows that from 1964 to 1972 although he was advised not to climb up stairs and to occupy ground floor premises the proceedings for eviction were not filed but it does not mean that she cannot obtain possession on the ground of bonafide requirement. The respondent's husband has been a heart patient. This is not denied and in any case it is abundantly proved on record The Controller and the Tribunal after considering the evidence on record have also returned the finding that the respondent's husband has been a heart petient and he is required to occupy ground floor under the medical advice. I do not agree with the submission of the appellants' counsel that the late filing of the eviction petition in 1972, although the respondent's husband suffered heart attack in 1964, shows that the landlady does not require the premises for her residence. It is true that in March, 1964 A.W. 3 Epean became a tenant in a portion of the ground floor. He deposes that a tenant by the name of Sarkar and another the tenant also by the name of Sarkar were already in occupation of two portions of the ground floor as tenants. One of these Sarkars vacated the premises in 1969 and this portion then was let out to a tenant by the name of Chaliapa. These facts are not denied by the landlady. It is however denied that any portion of the ground floor fell vacant in 1965 or 1975. The Tribunal has observed that the portion had fallen vacant in 1965 but it is not correct if reference is made to the statement of the tenant, A.W.3. The next question as contended by the learned counsel for the appellants is that Epean A.W. 3 surrendered his tenacy, vacated the premises and delivered possession to the landlady. The Tribunal considering the evidence held that there was no evidence about the surrender to tenancy possessed by him. The learned counsel submit that the finding is perverse and contrary to evidence on record. He refers to the statement of R.W. 1 a postman. He deposes that Epean was residing. In his statement dated 17/9/1976 it is deposed by him that Epean vacated about one year ago i.e. 1975 and Chaku is now residing in the same premises. R.W. 2 is residing opposite to the suit premises. He deposes that Epean was not residing and Chaku is residing. R.W. 4 is an official of the rationing department. It is deposed by him that ration card of Epean was cancelled on 20/9/1975 and that a new rat on card was issued to M.C. Chaku. Epean appeared as R.W. 5. He deposes that he never surrendered the tenancy of the portion of the ground floor, that he never vacated the premises and that he never surrendered possession to the landlady, he admits that his cousin is in occupation of the premises under his tenancy. The respondent's husband was examined and he deposes that Epean continues to be a tenant, that he never surrendered the tenancy and never delivered vacant possession of the premises. Examining the evidence referred to by the learned counsel for the appellant it cannot be said at all that the respondent- landlady was ever delivered possession of any premises which are under the tenancy of Epean R.W. 5. It may be noted that he may have inducted his counsin Chaku in the premises. The respondent landlady is not in possession she may have to take action under Section 14 of the Act to evict him but it is not necessary that on this ground she can be non-suited. The alleged surrender of tenancy is of September, 1975 while eviction petition was filed in March, 1972. Thus there is no force in the sumission of the learned counsel for the appellant that any portion of the ground floor was surrendered or vacated in September, 1975. Taking the totality of the circumstances, I am of the opinion that vacation of a ground floor portion by a tenant namely Sarkar and letting out the same to Chaliapa in 1969 does not show that the need is not bonafide. It may be temed as a negligenceon her part but it does not mean that if she had not initiated the proceedings prior to March, 1972 she can be non-suited even now when the heart trouble of her husband still continues. He has been advised not to climb up stairs and to reside on the ground floor. No premises on the ground floor have fallen vacant after the institution of the eviction proceedings I am thus of the opinion that the respondent-landlady has no reasonably suitable accommodation with her and that her husband is a heart petient and that she requires the suit premises which are on the ground floor for the residence of herself and for her husband. The requirement is also bonafide. Learned counsel for the respondent further contends that the findings regarding letting purpose, bonafide requirement and that the landlady has no other resonably suitable accommodation are findings of fact and no substantial question of law is involved. The question whether the requirement of the landlady is bonafide is a question of fact and not a mired question of law and fact as has been held in Mattulal Vs . Radha Lal, : 1SCR127 The conclusion of the tribunal that the premises were let for residential purposes is supported by documents and there is ample evidence and thereforee no substantial question of law is involved in the appeal. (See : Shanentar Vaid V. Harbans Lal 1978 (2) R. L.R. 703. The Supreme Court in Kartar Singh V. Chaman Lal and others 1969 R.C.J 349 also observed that the finding as to purpose for which the premises were let is a finding of fact.
(6) The last question requiring decision is whether the eviction petition does not disclose cause of action and if not, to what effect The respondent-landlady in the eviction petition pleads :
'the petitioner is the owner of House No. 2458, Gali No. 9/10, Beadonpura, Mew Delhi and in which the demised premises are part thereof. The premises are bonafide required for the residence of the petitioner and her dependant family members. The premises also needed for the petitioner and the husband of the petitioner who are not keeping well. Medical certificates are anexed and marked Annexures A/2 and A/3.'
(7) The appellants in the written statement plead that the premises have been used both for residence and for commercial purposes since the inception of the to pancy, that Madan Lal was a practicing lawyer and has a regular office in the said premises, and that the landlady and her husband have already in their possession sufficient accommodation. From reading of the eviction petition it appears that the respondent-landlady did not plead that the premises were let for residence. She also did not plead that she had no other resonably suitable residential accommodation. Section 14(1)(e) of the Act reads as under :
'S. 14(1)(e) that the premises let for residential purposes are required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation : Explanationn:- For the purpose of this clause, 'premises let for residential purposes' include any premises which having been let for use as a residence are without the consent of the landlord used incidentally for commercial or other purposes ; To constitute cause of action a landlord has to plead the following facts: 1. The premises were let for residential purposes. 2. the premises are required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him. 3. The landlord is the owner of the premises. 4. The landlord has no other reasonably suitable residential accommodation.
(8) It is correct that ingredients 1 to 4 required to be pleaded are not pleade in the eviction application No objection was taken by the appellants-tenants in their written statement that the eviction petition does not disclose any cause of action. It was also never argued before the Controller and the Rent Control Tribunal. The Tribunal in its order observes as follows :
'ONLYpoints which have been agitated before me are with regard to the letting purpose of the demised premises and the bonafide requirement of the appellants for having the demised premises for occupation as a residence for herself and for her family members dependent upon her.'
(9) It is thereforee clear that neither the objection was pleaded nor argued either before the Controller or the Tribunal. The learned cousel for the appellants contends that pleading and proving the four ingredients of clause (e) of Section 14(1) of the Act are necessary before an order of eviction can be granted. This is comet. If all the ingrcients constituting the cause of action within the meaning of clause (e) of Section 14(1) of the Act are not pleaded and proved the landlord is not entitled to an order of eviction. It is also well known that no evidence can be looked into on a plea which was never raised in the pleadings. What has happened in this case is that the appellants tenants of their own accord, as stated above, have pleaded in the written statement that the premises were let not only for residence but both for residence and commercial purposes. It is also pleaded by them that the landlady has sufficient accommodation meaning thereby that she has reasonably suitable residendential accommodation. When evidence was being led before the Controller it appears that no objection was raised against the recording of the evidence on these two facts. The Controller gave his finding on these two facts, one in favor of the appellants and the other against the respondent. The Tribunal however on considering the evidence reversed the finding of the Controller on question of letting pur osc as discussed above. Not only this the appellants-tenants filed an application before the Tribunal that the respondent has reasonably suitable accommodation and sought permission to lead evidence. This was on the point whether Epean. a tenant in a portion of the ground floor, vacated the premises and surrendered the tenancy in September. 1975. So at the instance of the appellants themselves the Tribunal determined that the respondent-landlady has no other reasonably suitable residential accommodation.
(10) The question for decision thereforee is whether in these circumstances the respondent-landlady is to be non-suited for not pleading the two material ingredients of clause (e) of Section 14(1) of the Act. This is second appeal. No specific objection was taken in the written statement. It was neither argued before the the Controller before the Tribunal. This is a new point in the appeal which may or may not be allowed to be argued by the appellants.
(11) The learned counsel for the appellants in support of his contention that if all ingredients under clause (e) of Section 14(1) of the Act, are not pleaded the petition is liable to be rejected, relies upon the following authorities : 1. Abdul Hamid and another Vs, Nur Mohammad 1977R.C.R. 301. 2. Banke Ram v. Smt. Sarasvati Devi 1977 R.C.R. 595 (F.B.) 3. Onkar Nath v. Ved Vyas 1979 (2) Rlr 226. In Abdul Hamid and another (Supra) it doss not appear that there was any evidance on record with respect to the various ingredients of clause (e) of Section 14(1) of the Act. The facts of that case are entirely different and as such it does not help the appellants. In Banke Ram (Supra) (FB) the Court observed, ''in the present case we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of sub clauses (b) & (c) and not the question that if in a particular case these ingredients are not pleaded, but the parties have led evidence with regard to them, what will be the effect ?' Further the Full Bench observed, 'it should not be understood that under no circumstances in the absence of pleadings, the evidence regarding the ingredients envisaged in sub-clauses (b) & (c) can be looked into'. The matter before the Full Bench was under Section 13(3)(a)(i)(b) and (c) of the East Punjab Urban Rent Restriction Act, 1949. These observations of the Full Bench do not help the appellants. It was not decided by the Full Bench that the evidence regarding the ingredients cannot be looked into in the absence of the pleadings. The Supreme Court in Onkar Nath (Supra) dismissed the eviction application on ground of bonafide personal necessity as the three ingredients under the East Punjab Urban Rent Restriction Act, 1949 were not pleaded and proved. If was observed, 'there is not a scintilla of evidence nor indeed there is any averment in compliance with these letter conditions'. The Supreme Court in its judgment does not refer to a case where there is no pleading but there is evidence on record in support of the various ingredients of bonafide personal necessity. As already observed, the parties led evidence on the igredients of clause (e) of Section 14(1) of the Act. In Hedumari Kameswaramanna Vs Sampathi Subba Rao : 2SCR208 the Supreme Court has observed :
'SINCEthe 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 mistrial which vitiates proceedings. We are, thereforee, 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 evidence 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'.
In the case before me it is not claimed by the appellants that they had to lead any other evidence. This Supreme Court judgment concludes the matter.
(12) The learned counsel for the respondent further argues that this objection is liable to be rejected at this stage in the second appeal. This court in Smt. Kaushalya v. Mantoo and another 1969 P.L.R. (Delhi Section) 17 which is a regular second appeal observed that if such a plea is not raised in the written statement of the same was liable to be rejected in second appeal, in Kanwar Singh v. Maman Chand 1980 (1) R.L.R. 678, it was held that in cases of bonafide requirement if ingredients required by the Act are not pleaded but parties lead evidence keeping the ingredients in view, the petition for eviction cannot be dismissed for not pleading the ingredients as no prejudice was caused to the tenant. In Paramjit Singh and others v. Bawa Gurdas Ram and others 1978 (2) R.C.J. 40 ingredients of bonafide were not pleaded in the eviction application and the evidence thereon was taken into consideration. The tenants were not allowed to raise such an objection at the revisional stage. This court in Hans Raj Dawar & other v. Syam Kishore 1977(2) R.L.R. 253 observed that the inadequancy of the pleadings, if any, is, not fatal to the case if no prejudice was caused to either of the parties. The Supreme Court in Rattan Lal v. Vardesh Chander and others 1976 R.C.R. 355 in a case under this Act has observed that the Rent Act contemplates no elaborate pleadings but filing out of particulars in a proforma which takes the place of a plaint. Again in Gurdial Nagdev v. Smt.Devi Bai 1979(1) R.C.R. 119 this court observed that failure io plead ingredients does not necessarily result in dismissal of petition for ejectment if parties knew the points of controversy and no one was taken by surprise. If the appellants-tenants had taken the objection in the eviction petition that it does not disclose any cause of action in their written statement, the respondent landlady would have cured the defect. She is now taken by surprise in the second appeal. The objection, not raised in the courts below to which the respondent has had no notice that it is going to be urged, cannot be allowed to be urged in the second appeal. Further if such an objection has not been taken in the first instance and evicance has been recorded, without any protest on facts which were not pleaded, the objection cannot be allowed to be raised in the second appeal. Further if such an objection has not been taken in the first instance and evidence has been recorded, without any protest, on facts which were not pleaded the objection cannot be allowed to be raised in the second appeal. The objection that a plaint does not disclose cause of action must betaken at the earliest. If the court on examination finds the objection valid it may reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure. The court however before rejecting the plaint may allow the same to be amended, if applied for by the party in accordance with Order 6 Rule 17 of the Code. If such an objection has not be taken in the Written statement and evidence has been recorded on facts not pleaded, without any protest by the party, and where the parties were aware of the case and pleas of the opposite party at the time of recording of evidence it is not desirable to non-suit a party failure to plead facts properly specially at the stage of second appeal, or even first appeal if no prejudice was caused to the parties.
(13) In the present case, alt the igredients of clause (c) of Section 14(1) of the Act were not pleaded and no objection was taken before the Controller and the Tribunal, that the petition did not disclose any cause of action, the tenants themselves pleaded that the premises were not let for residential purposes alone and the landlady has resonably suitable residential accommodation, and evidence has been recorded on all the ingredients without any protest, they are not prejudiced by absence of pleading. The appellants-tenants thereforee cannot be allowed to raise the plea in second appeal that the eviction pettition does not disclose any cause of action.
(14) This appeal does not raise any substential question of law and has no merit. It is thereforee, dismissed with costs. Counsel fee Rs. 300.00. Appeal dismissed