TMI Blog2019 (10) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... RT ], Hon'ble Supreme Court held Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter or grounds, there is need to add to or to modify the allegations either in the petition or in the counter- affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences - Thus, the impugned judgment on the points beyond pleadings cannot be sustained. Scope of release application for eviction of a tenant in a rent case - HELD THAT:- It is settled law that in an eviction suit filed by a landlord against the defendant-tenant, the landlord and tenant are the only necessary parties. The plaintiff-landlord in such a suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. Firstly, plaintiff-landlord has to prove that there exists a relationship of landlord and tenant between the plaintiff and the defendant and secondly, the grounds on which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. Hence, the defendant-respondent who was tenant of the plaintiff-petitioner/ landlord cannot deny the landlord s title and he has to surrender possession to the plaintiff-petitioner before he can challenge the title of the plaintiff-petitioner - thus, under the facts and circumstances of the case, it was not permissible for the defendant-tenant/ respondent to deny the title of the plaintiff-petitioner. Petition allowed. - Hon'ble Surya Prakash Kesarwani,J. For the Petitioner :- Manish Tandon For the Respondent :- Gyanendra Pratap Sharma,Neeraj Dube ORDER Main questions involved in this petition are:- (a) Whether a judgment beyond pleading is sustainable? (b) Whether owner of a building who inducted a person as tenant, is not landlord of the building for reason that the building is constructed over a leased land which is owned by Cantonment Board? (c) Scope of a rent case? 1. Heard Sri Manish Tandon, learned counsel for the plaintiff-petitioner and Sri Shaktidhar Dube holding brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kshmi Devi (deceased) and others}. It appears that during pendency of the appeal, the husband of the plaintiff-landlady, namely Sri Ram Chandra Gupta also died and he was succeeded by heirs and legal representatives including the petitioner. In the memorandum of appeal, the tenant has not taken any ground either disputing or denying the applicability of U.P. Act XIII of 1972 or the plaintiff to be the landlord of the disputed house. 5. By judgment dated 31.01.2018 passed by Additional District Judge, Court No.24, Kanpur Nagar, the appellate court allowed the appeal of the tenant beyond the pleadings, on the ground that U.P. Act XIII of 1972 is not applicable in view of Section 2(1)(a) as the disputed property is owned by the Cantonment Board/ Government of India. Aggrieved with this judgment, the plaintiff-landlord has filed the present petition under Article 227 of the Constitution of India. SUBMISSIONS:- 6 . Learned counsel for the plaintiff-landlord submits as under: (i) The appellate court has committed manifest error of law to travel beyond the pleadings of the case and grounds of appeal and, therefore, the impugned judgment of the appellate court is not sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsels for the parties. Whether a judgment beyond pleadings can be sustained? 9. As per provisions of Order VI Rule 1, C.P.C., 'pleading' shall mean plaint or written statement. Order VI Rule 2 provides that every pleading shall contain only, a statement in a concise form of the material facts on which the party relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph, dates. Sums and numbers shall be expressed in a pleading in figures as well as in words. Thus, a party cannot make out a case on the basis of an evidence for which he/ she has laid no foundation in the pleadings. It is fairly well settled that no amount of evidence can prove a case for a party who has not set up the same in his/ her pleadings. 10. As per Order XX Rule 4, C.P.C., judgments of a court of small causes need not contain more than the points for determination and the decisions thereon while the judgments of other courts shall contain a concise statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings and if owing to discovery of new matter or grounds, there is need to add to or to modify the allegations either in the petition or in the counter- affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences . 15. In Bhagwati Prasad vs. Chandramaul, AIR 1966 SC 735 (paras-9 and 11), a four judges bench of Hon'ble Supreme Court held as under: 9. There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court is Sheodhar Rai Others v. Suraj Prasad Singh Others, AIR 1954 SC 758. In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence against the said plea. (iv) The Court must see that by allowing one party to raise a new plea or case not pleaded in his pleading, or for which no issue was framed, no prejudice or injustice is done to the other party. (v) The new plea set up should not be otherwise legally barred. If the conditions mentioned above are fulfilled, then the Court can legitimately act upon the new plea not finding any place in the pleading and on which no issue has been framed when the said pleas are proved. The absence of issue in a case like this will be of no avail and the objection, if any, becomes technical having no value. 17. In R.K.S. Chauhan (Dr. vs. State of U.P. (1995) (Supp.3) SCC 688 (Para-33), Hon'ble Supreme Court held that a decision on a plea not raised in the petition is not sustainable. 18. In Bharat Singh and others vs. State of Haryana and others, (1988) 4 SCC 534 (para-13), Hon'ble Supreme Court held as under: 13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the respondents before the High Court. Counsel for the parties are right in submitting that the point on which the writ petition has been disposed of was not raised by the parties in their pleadings. The parties were not at issue on the point decided by the High Court. Counsel for the parties are also right in contending that the point raised in the writ petition was neither adverted to nor adjudicated upon by the High Court. It is also correct that the vires of Section 6(2)(b)(bb) and (c) of the Act were not challenged in the writ petition. The effect of the direction issued by the High Court that henceforth the appointment to the post of Vice-Chairman be made only from amongst the sitting or retired High Court Judge or an advocate qualified to be appointed as a Judge of the High Court would be that Sections 6(2)(b)(bb) and (c) of the Act providing for recruitment to the post of Vice-Chairman from amongst the administrative services have been put at naught/obliterated from the statute book without striking them down as no appointment from amongst the categories mentioned in Clauses (b) (bb) and (c) could now be made. So long as Section 6(2)(b)(bb) and (c) remains on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds on which the eviction is sought, the eviction suit succeeds. 24. In the present set of facts, it is the admitted case of the defendantrespondent that he is tenant of the disputed building and the plaintiffpetitioner is the landlord. The relationship of landlord and tenant between the plaintiff-petitioner and the defendant-respondent was undisputed. Under the circumstances, the appellate court committed a grave error of law to hold that since the disputed building is standing over a leased land of Cantonment Board of which the Cantonment Board is the owner and, therefore, the provisions of U.P. Act XIII of 1972, shall not be applicable since the plaintiff-petitioner is not the owner of the land. Whether plaintiff-petitioner is landlord of the building in question which was built over leased land . 25. Section 21(1)(a) provides that the Prescribed Authority may, on an application of landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specific part thereof, if he is satisfied that the building is bonafidely required by the landlord for occupation by himself or any member of his family or any person for whose benefit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents. 28. In Apollo Zipper India Ltd. vs. W. Newman and Co. Ltd., 2018 (3) ARC 187 (Paragraphs-45, 46 and 47), Hon'ble Supreme Court held as under:- 45. It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit. 46. In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit. (See Sheela Ors. vs. Firm Prahlad Rai Prem Prakash, 2002 (3) SCC 375, Para 10 at page 383 and also Boorugu Mahadev Sons Anr. vs. Sirig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title holder of the property or where that the plaintiff-landlord had, during the intervening period, lost his title to the property. We are not, however, dealing with a case where the respondent-tenant claims that the property is vested in anyone else who could be described as the paramount title holder or there was any extinction of the title of the appellant on any count whatsoever since the induction of the respondent as a tenant into the premises. We need not, therefore, be detained by any one of those considerations. What is important is that so long as a jural relationship exists between the respondent-tenant and the appellant and so long as he has not surrendered the possession of the premises in his occupation, he cannot question the title of the appellant to the property. The inevitable inference flowing from the above proposition would be that (viz-a-viz the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est for upholding a decision on a plea not covered by pleadings and issues struck in the trial court, has been generally summarised, as under: (i) The parties must have fully known before going to the trial that the new plea taken would be thrashed out and decided in the suit to have a bearing on the ultimate result of the suit. None of the parties should be taken by surprise on account of a new plea foreign to the pleading of the party raising it. (ii) The opponent of the party setting up the new plea must have accepted the challenge of the said plea without objection as to its absence in the pleading or issue by adducing rebutting evidence or otherwise dealing with the same. (iii) The party challenging the plea must have reasonable opportunity to meet it effectively and to adduce evidence against the said plea. (iv) The Court must see that by allowing one party to raise a new plea or case not pleaded in his pleading, or for which no issue was framed, no prejudice or injustice is done to the other party. (v) The new plea set up should not be otherwise legally barred. If the conditions mentioned above are fulfilled, then the Court can legitimately act u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndlord and tenant between the plaintiff-petitioner and the defendant-respondent was undisputed. Under the circumstances, the appellate court committed a grave error of law to hold that since the disputed building is standing over a leased land of Cantonment Board of which the Cantonment Board is the owner and, therefore, the provisions of U.P. Act XIII of 1972, shall not be applicable since the plaintiffpetitioner is not the owner of the land. (viii) The eviction of tenant under Section 21(1) of the U.P. Act XIII of 1972 is only with respect to a building as defined in Section 3(i) of the U.P. Act No.XIII of 1972, which is an inclusive definition and means a residential or non-residential roofed structure. Neither Section 21(1) nor the definition of the word building in Section 3(i) of the U.P. Act XIII of 1972 requires that the land of the building should be free-hold or it should not be a leased land. Principle of estoppel under Section 116 of the Evidence Act and challenge to the derivative title :- (ix) As a general rule, a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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