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1990 Supreme(Del) 417
High Court Of Delhi
ANAND SAROOP GUPTA - Appellant
Versus
ZALIM SINGH - Respondent
Regular Second Appeal 51 of 1989
Decided On : 12/19/1990
C.P.WIG, I.S.MATHUR
The omission to specifically state in the plaint that the premises were let out for residential purposes does not necessarily result in the dismissal of the suit, if the parties knew the points in controversy and none was taken by surprise.
Headnote:
DELHI RENT CONTROL ACT, 1958 - SECTION 2 (L) - SUIT FOR POSSESSION - CAUSE OF ACTION - PLEADING - NECESSITY - RESIDENTIAL PREMISES - LETTING OUT FOR RESIDENTIAL PURPOSES - OMISSION TO SPECIFICALLY STATE IN PLAINT - EFFECT - PREJUDICE - AMENDMENT OF PLAINT - ORDER 7 RULE 11 C. P. C. - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit for possession against the defendant, alleging that the deceased tenant, Smt. Ganga Devi, was a tenant of the plaintiff in respect of one room and common verandah on the ground floor of the house, on a monthly rent of Rs. 10.00. The contractual tenancy of Smt. Ganga Devi had been terminated by a notice dated 5/01/1984. After the termination of tenancy, Smt. Ganga Devi continued in possession, by virtue of the protection, as, afforded by the Delhi Rent Control Act, 1958. Smt, Ganga Devi, died on 2/03/1984, leaving behind only one heir, ie. her son, namely, Zaiim Singh, respondent herein. In the plaint, it was also alleged that at the time of the death of hi; mother, respondent was not residing with her and, he was not financially dependent upon his mother, since, be was leading fireman, employed with Delhi Fire Service, getting handsome salary and had been allotted a quarter no. A-3, at the Fire Service station, Moti Nagar, Delhi. In that quarter, respondent has been residing with bis family members.
Finding of the Court:
The court held that the plaint did disclose a cause of action and that the omission to specifically state that the premises were let out for residential purposes did not cause any prejudice to the respondent. The court further held that the parties knew fully well that the premises were let out for residential purposes and that no prejudice was caused to the respondent. The court also held that the plaint could not be rejected under Order 7 Rule 11 Civil Procedure Code by the learned first Appellate Court.
Issues: 1. Whether the plaint read as a whole did not disclose cause of action. 2. Whether a plea that the plaint did not disclose cause of action because it was not asserted that the premises were let for residential purposes to Smt. Ganga Devi, could be raised for the first time in appeal, when no such plea was raised in the written statement or till decision of the suit by the Trial Court. 3. Whether from the pleadings and evidence it is apparent that the respondent knew that the above mentioned plea that the premises were let for residential purposes was involved in the trial, and in appeal no grievance about it could be raised.
Ratio Decidendi: 1. The court held that the plaint did disclose a cause of action as it was clear from the reading of the pleadings that the premises in question were not only for residential, but were let out for residential purposes. 2. The court held that the plea that the plaint did not disclose cause of action could not be raised for the first time in appeal as no prejudice had been caused to the respondent on account of the omission, on the part of appellant, to state the purpose of letting out. 3. The court held that it was obvious from the pleadings and evidence that both the parties knew fully well that the premises were let out for residential purposes, and no prejudice was caused to the respondent.
Final Decision: The appeal was allowed. The impugned judgment was set aside and the case was remanded back to the First Appellate Court, for deciding the same on merits.
( 1 ) THIS Regular Second Appeal, is directed against thejudgment dated 20/02/1989, by which, the first Appellate Court (learnedadditional Senior Sub Judge, Delhi), rejected the plaint, under Order 7 Rule IIof Civil Procedure Code.
( 2 ) IN the appeal, appellant, has raised the following substantial questions of law :
"1. Whether the plaint read as a whole did not disclosecause of action. 2. Whether a plea that the plaint did not disclose cause ofaction because it was not asserted that the premises were let forresidential purposes to Smt. Ganga Devi, could be raised for the firsttime in appeal, when no such plea was raised in the written statement or till decision of the suit by the Trial Court. 3. Whether from the pleadings and evidence it is apparentthat the respondent knew that the above mentioned plea that thepremises were let for residential purposes was involved in the trial,and in appeal no grievance about it could be raised. "
( 3 ) WHILE admitting the appeal, Mahinder Narain, J. observed thatthe averments, as appear from the judgment of the Courts below, were sufficientto establish, that it was pleaded, that the deceased Ganga Devi, had beenresiding in the permises with her son Zaiim Singh. Zaiim Singh was working asa fireman and was not dependent and, therefore, he was not entitled to succeedas tenant, in accordance with the statutory provisions.
( 4 ) BRIEFLY stated, the facts, giving rise to the appeal, are that on 4/03/1985, appellant (plaintiff in suit) filed a suit for possession againstrespondent, on the ground, that Smt. Ganga Devi, resident of 4896, Laddughati, Paharganj, New Delhi, was tenant of appellant, in respect of one roomand common verandah, on the ground floor of the house, on a monthly rentof Rs. 10. 00. The contractual tenancy of Smt. Ganga Devi, had been terminatedby a notice dated 5/01/1984 After the termination of tenancy, Smt. Ganga Devi continued in possession, by virtue of the protection, as, afforded bythe Delhi Rent Control Act, 1958, hereinafter called the Act.
( 5 ) SMT, Ganga Devi, died on 2/03/1984, leaving behind only oneheir, ie. her son, namely, Zaiim Singh, respondent berein. In the plaint, itwas also alleged that at the time of the death of hi; mother, respondent wasnot residing with her and, he was not financially dependent upon his mother,since, be was leading fireman, employed with Delhi Fire Service, getting handsome salary and had been allotted a quarter no. A-3, at the Fire Servicestation, Moti Nagar, Delhi. In that quarter, respondent has been residing withbis family members.
( 6 ) IN his written statement, respondent alleged that the suit was notmaintainable, -as the same has not been properly valued and also, that be was atenant after the death of his mother, and, assuch, the eviction proceedingscould be initiated only in the court of Rent Controller, Delhi, under the Delhirent Control Act. Respondent further alleged that he was the sole legal heirof his mother Smt. Ganga Devi. The defence on merits, of respondent was,that the tenancy of Smt. Ganga Devi had not been terminated by any notice,that respondent was financially dependent on her mother and he wasr esidingwith her. However, it was not denied that he was employed with Delhi Fireservice and had been allotted a quarter, but it was alleged that, hea nd bischildren, were living in the suit premises.
( 7 ) IN replication, appellant affirmed the averments, as made in the plaint.
( 8 ) ON the pleadings of the parties, following issues were framed, bythe learned Sub Judge :
1. Whether the suit of the plaintiff is not maintainable undersection 50 of the Rent Control Act ? OPD2. Whether r he suit has been properly valued for the purposeof court fee ? OPD3. Whether the plaintiff is entitled for the relief of the possession as prayed ?
( 9 ) BOTH the parties led evidence, before the trial court.
( 10 ) IN his judgment, the learned trial court, held that suit was notbarred under Section 50 of the Act, and, as such, was m
