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Ram Autar Goel vs Jagannath Gupta And Another

High Court Of Judicature at Allahabad|29 January, 1998

JUDGMENT / ORDER

JUDGMENT S.K. Phaujdar, J.
1. This revisional application under Section 25 of the Provincial Small Causes Courts Act is directed against the judgment and decree dated 23.4.86 recorded by the Judge of the Court of Small Causes, Kanpur Nagar, in S.C.C. Suit No. 25 of 1985. The matter was once heard by me and was disposed of by my order dated 7.7.97 whereby the revisional application was dismissed.
2. The aggrieved revisionist went up in Civil Appeal No. 7329 of 1997 arising out of an S.L.P. (C) No. 18906 of 1997 to the Hon'ble Supreme Court. The leave as prayed for was granted. The matter was heard and it was remanded back to this Court with an observation that the real dispute which survived in the revision was whether decree for possession as passed by the trial court on the ground of denial of title of the landlord by the present revisionist was legally justified or not and the Honlile Supreme Court was further of the view that this question, unfortunately, was not examined by the High Court on merits.
3. The plaintiff-respondents sued for possession of the suit premises on two grounds, (I) default in payment of rent and (2) denial of the title of the plaintiffs by the tenant. While deciding the issues, the trial judge had found that the default was there, but on a further Issue he had also found that the tenant was entitled to the protection under Section 20 (4) of the U. P. Act No. 13 of 1972. Thus, the eviction was not permissible on the ground of default. This Court in its earlier judgment had overlooked the decision on Issue No. 4 giving the protection to the tenant under Section 20 (4) of the U. P. Act No. 13 of 1972 and although the controversy concerning denial of title was raised before it and case-laws were placed on that point, this Court under a mistaken idea, that the decree was on two grounds, declined to record any opinion on this second ground.
4. Not only from the direction of the Hon'ble Supreme Court but also from a second reading of the materials on record, it appears that the only point for consideration in this revision is whether the decree on the ground of denial of title was legally justified or not. The learned counsel in this Court reiterated their arguments on the point which remained undecided on the earlier occasion.
5. Reference may be made in this regard to Section 20 (2) (f) of the concerned rent law (U. P. Act No. 13 of 1972). In fact. Section 20 permits a suit for eviction on the grounds mentioned in different sub-clauses of clause (2) of that Section. Section 20 (2) (f) may be quoted :
(f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of re-entry or condoned the conduct of the tenant."
6. It was submitted that in terms of the requirement of this Section, the plaintiff was to plead not only dental of title but there should have been a further pleading that the plaintiff had not waived his right of re-entry and had not condoned such act of the defendant-tenant. It was contended that in the absence of specific pleading concerning the legal requirements for a suit for eviction, no evidence on that point could be led.
7. In reply to this argument, it was contended on behalf of the plaintiff-respondents that Section 20 (2) (f) speaks of two conditions, (1) of a positive assertion of renouncement by the tenant of his character as such and denying the title of the landlord by him and there is a negative aspect: (2) that the act of the tenant was not condoned or the landlord had not waived his right of re-entry. It was contended that if the positive requirement was asserted, the negative assertion could be concluded from the total tenor of the plaint. Learned counsel also submitted that service of notice to quit upon the defendant was alleged and not denied and in the notice itself, it was Indicated that the landlord had not waived his right of re-entry and had not condoned the act of the tenant.
8. The revisionist contends, in addition to the above points that notice to quit could have been given on grounds as Indicated under Section 20 (2) (f) but there was no necessity of demanding arrears of rent and the very fact of such demand would indicate that the act of the defendant was condoned and the right of re-entry was waived. In answer to this submission, learned counsel for the plaintiff-respondents stated that when a sum was due from the tenant, the plaintiff had every right to claim it and mere description of the sum as "rent" in contrast to claiming it as "damages" may not defeat the cause of the plaintiff and, in any case, the sum deposited under Section 20 (4) was never withdrawn by the plaintiff. In the instant suit. It was the pleading of the plaintiff that in an earlier suit, the present defendant had denied their title and also had denied the status of the defendants as tenant under the plaintiff. This appeal was dismissed at the trial stage and at the first appellate stage and the present defendants, the plaintiffs in that suit, had taken up the matter to the High Court and the matter was still pending. It was stated that a notice to quit was served but the defendants did not quit the suit-property. In the written statement filed by the defendants in this suit, it was accepted in unambiguous terms that the present plaintiffs were the landlords under whom the defendant was a tenant for the suit-property. A plea was, however, raised that the earlier landlord from whom the present plaintiffs had purchased the suit-property had Instructed the defendant to go on paying rent to him as his deal with the present plaintiff was not complete. Under a bona fide belief, the defendants went on paying to the earstwhile landlord the rent for the concerned property. The Issue on this point was issue No. 5 in the language :
"Kya prativadi ne vadigan ke swamitva ko aswikar evam inkar kiya hai?" (Had the defendant denied the title of the plaintiffs?
9. The trial court had taken up Issue No. 5 and had taken note of that fact that in the earlier suit the defendants had taken up a plea denying the title of the present plaintiffs. On the facts proved in the case, the Court below had accepted the contention of the plaintiffs that they had purchased the suit-property from its earstwhile owner, and from the conduct of the present defendants in the earlier suit filed by them, it was held that the act amounted to denial of the title of the present plaintiff. On this score alone, the trial court was of the view that the defendants were liable to be evicted. In this respect, he relied on the decision of the Allahabad High Court in the case of Narain Khanna, 1982ALJ1441, parallel to 1982 (2) ARC 1.
10. This decision has again been placed before me. It was a case where the tenant had asserted that there were more landlords of the premises in question and that he was not a tenant. The Court held that it amounted to denial of landlords' title, as required under Section 20 (2) (f) of U. P. Act No. 13 of 1992 as there was not only denial of title but it also resulted in renouncement of character of the tenant as such. The question before us, however, is not the factum of denial but it is the question whether the pleading was a proper one in terms of the requirement of the above section.
11. Concerning the absence of pleading, the learned counsel for the plaintiff-respondents relied on the decision of the Supreme Court in the case of Ram Swaroop Gupta v. Bishun Narain Inter College and others, AIR 1987 SC 1242. A question cropped up before the Apex Court about absence of pleading on a particular point and it was observed that it was not desirable to place undue emphasis on form. Instead, substance of pleading was to be considered. Before the Supreme Court it was an appeal relating to a suit for possession of a property and it was observed that it was die duty of the Court to ascertain the substance of the pleadings to determine the question at dispute, and if it was found that inspite of deficiency in the pleadings, the parties knew the case and they proceeded to trial on those issues by producing evidence, it would not be open for any party to record the question of absence of pleading in an appeal.
12. Reliance was further placed on this point again on a decision of the Supreme Court in Udhab Singh v. Madho Rao Sindhia, AIR 1976 SC 744, to say that in construing a pleading, it is to be read as a whole and the intention of the party is to be gathered from the tenor and terms of his pleadings taken as a whole. Even upon this pronouncement, a question would always remain whether a legal requirement may not be pleaded and still a right upon that ground could be enforced. 13. The revisionists took me through the decision of the Allahabad High Court in Pradeep Gautam and another v. VIIIth A.D.J., Allahabad, 1993 (1) ARC 44. It was also a case for eviction based on the ground mentioned in Section 20 (2) (f). The tenant had denied the landlord's title. The Court had indicated as to what were the factors necessary for its proof. The trial court had recorded a finding only on one relevant factor and ignored the other factor. There had been a finding regarding denial of the landlord's title but there was no finding of absence of waiver or absence of contention as required under the above section. The case was ramanded for decision afresh. The revisionist also relied on the decision of the Allahabad High Court in the case of Mohd. Arif, 1984 (2) ARC 255. This was also a suit for eviction on the grounds mentioned under Section 20 (2) (f) and the Court observed that when only the first requirement was proved and the second requirement was not proved, the suit could not be decreed. The Court had directed a re-trial for a finding on the aforesaid point.
14. The revisionist also placed before me another decision of the Allahabad High Court (Lucknow Bench) as pronounced in the case of Mohd. Alim v. Mohd. Abrar, 1989 (7) LCD 268. The denial of the landlord's title was made by the tenant in his written statement. It was observed that the plaintiff had to plead and prove that he had not waived his right of re-entry and had not condoned the conduct of the tenant. In paragraph 30 of the judgment, the Court had explained the necessity of pleading and proof of both the requirements of Section 20 (2) (f). It was observed that whether there had been a waiver or condonation or not, was a question of fact, and there should have been pleading and evidence. The plaintiff was required to say that he had not waived his right of re-entry arising from such denial and he had not condoned the conduct of the tenant. The decree of eviction was set aside in the absence of pleading of absence of condonation and waiver. These case-laws are to be Judged in the light of the Supreme Court decision as referred to above on the question of insistence on the form of pleading, rather than its contents. It is found that the trial Judge was absolutely unaware of the second requirement of Section 20 (2) (flof U. P. Act No. 13 of 1972, and neither in the Issue No. 5 nor in his decision on that point he had recorded any finding to touch that question. In view of the concerned judgments of the Allahabad High Court, it is, therefore, necessary that re-trial should be directed after setting aside the present decree of eviction. The parties, however, would be given an opportunity of making arguments afresh without, in any way, amending the pleadings and without leading any further evidence. The trial court is to see whether in the absence of specific pleading on the point of second requirement of Section 20 (2) (f), the plaint could be entertained in view of the aforesaid two Supreme Court decisions and if so, whether there had been in fact such a waiver or condonation so as to disentitle the plaintiff from an order in hia favour even on the basis of the denial of his title.
15. The revisionist's present application stands allowed. The judgment and decree of the Court below is set aside and the matter is remanded back to the Court below for decision on the points, as indicated above, after hearing the parties.
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Title

Ram Autar Goel vs Jagannath Gupta And Another

Court

High Court Of Judicature at Allahabad

JudgmentDate
29 January, 1998
Judges
  • S Phaujdar