Ms. Leila Seth,j. ( 1 ) THIS appeal by the tenant, Mr. Rup Carnd, isdirected against the judgment and order of the Rent Control Tribunal dated 27/02/1985 confirming the order of the additional Rent Controllerdated 8/07/1985. ( 2 ) THE main question in issue before me is whether the tenant hasacquired "vacant possession of, or been allotted, a residence". ( 3 ) ON 26/05/1976, landlady, Ms. Shanti Devi filed a petition undersection 14 (1) (a) and (h) of the Delhi Rent Control Act, 1958 (hereinafterreferred to as the "act") to eject Rup Chand. Thereafter, on 27/07/1976,rup Chand filed his written statement. ( 4 ) THE following facts, pertaining to section 14 (1) (. h) of the Act, havebeen pleaded in the petition. In paragraph 18 (a) (iii) of the petition, itis stated, "that the Respondent has acquired vacant alternative accommodation situated opposite Nagar Nigam Middle School, Circular Road, Jwalanagar, Delhi". In paragraph 4 of the said petition, it is mentioned that thedisputed premises being H. No. 591/24, Ram Gali, Block No. 3, Vishwas Nagar,shahdara, Delhi are residential. ( 5 ) IN the written statement, Rup Chand has admitted that the disputedpremises are residential. However, he has asserted that paragraph 18 (a) (iii)of the petition is : "absolutely wrong, baseless and therefore denied. The respondenthas not acquired any vacant alternative accommodation situated atnagar Nigam Middle School, Circular Road, Jwala Nagar, Delhi. The said allegation is baseless and the same has been alleged toharrass the respondent. ". ( 6 ) IT appears that Rup Chand s wife purchased a plot of land in 1971and completed construction of a building on the said plot in 1975. She nowalleges that she is running a school there, known as Sarva Hitakari Shikshakendra. ( 7 ) THOUGH the point had been raised by the tenant that acquisition ofpremises by the wife would not amount to acquisition by the husband, Mr. Andley did not press this point, in view of the settled position, as indicatedin the decisions of the Supreme Court and this Court in Prem Chand andanother v. Sher Singh, 1981 (2) DRJ 287. and V. K. Malhotra and others v. Smt. Ranjit Kaur, 1985 (1) RLJ 250, respectively. ( 8 ) MR. Andley did not press this point, in view of the settled position, as indicatedin the decisions of the Supreme Court and this Court in Prem Chand andanother v. Sher Singh, 1981 (2) DRJ 287. and V. K. Malhotra and others v. Smt. Ranjit Kaur, 1985 (1) RLJ 250, respectively. ( 8 ) MR. Andley mainly contended that the petition should have been, rejected under Order VII Rule II, Civil Procedure Code, as it did nodisclose any cause of action since the essential ingredients of section 14 (l) (hof the Act had not been pleaded in the petition. He submitted that thlandlady had not pleaded that the tenant had acquired vacant possession o"residential" premises and consequently the petition had to be rejected. ( 9 ) LEARNED counsel relied on a decision of Mr. justice S. Rangaranjan in Abdul Hamid and another v. Nur Mohammad,a. I. R. 1976 Delhi 328. In thesaid decision while dealing with the question of eviction undersection 14 (1) (e)of the Act-it has been observed that the landlord has a duty not only to allege and prove that he needs premises for his own use but also to aver and provthat he is not in possession of any other reasonably suitable residentsaccommodation. The learned Judge observed that the tenant expected tmake a research and since the necessary ingredients had not been stated, nground had been made out to order eviction. ( 10 ) THE other dicision relied on by learned counsel for the appellantis in Banke Ram v. Shrimati Sarasti Devi 1977r. C. J. 332. There the Fullbench of the Punjab and Haryana High Court held that it is a well establishedand salutary principle of law that in any civil proceedings it is essential fora party to plead all the ingredients on which he wants to rely and in proof ofwhich he may produce evidence. ( 11 ) IN Mr Edwin Brave v. Hari Chand, 1982 (1) R. C. R. 172, Mr Justicesultan Singh observed that since the petition for ejectment did not disclosethat the Tenses were let out for residential purposes, all the essentialin gredients on under section 14 (l) (e) of the Act had not been pleadedconsequently he held that under the provisions of Order VII Rule 11, Civilprocedure Code which were mandatory, the eviction petition had to berejected as it did not disclose a cause of action. ( 12 ) IN Dr (Mr)ND. ( 12 ) IN Dr (Mr)ND. Khanna v. M/s Hindustan industrial Corporation,new Delhi AIR 1981 Delhi 305, Mr. Justice Sultan Singh had alsoearlier an eviction petition under Order VII Rule 11, Civil Procedurecode as application did not contain all the necessary ingredients undersection 14 (l) (e) of the Act. ( 13 ) THERE does not appear to be any dispute with the proposition oflaw referred to in the above Mentioned decisions. The only question is havenecessary ingredients been incorporated in the pleadings. In order toobtain an order of eviction under section 14 (1) (h) of the Act, it is accessaryto plead that the tenant has either (i) built, or (ii) acquired vacantpossession of, or (iii) been allotted a residence. ( 14 ) IT would appear to me, reading the petition as a whole that theindicates that the averment in Paragraph accommodation situated opposite Nagar Nigamchand was vacant, residential accommodation. ( 15 ) SERVICE of a notice is also referred to in the application. Theappellant that a letter dated 28/02/1974 was received. In this letter specifically asserted "you have acquired alternative residential accommodation. " ( 16 ) FURTHER in an application, for discovery under Order XI Rules 12and 14, Civil Procedure Code filed by the landlady, it has been averred inand 14, Civil Procedure has acquired vacant alternative residentialparagraph. 1 that the Nigam Middle School. Circular Road, Jwalarespondent has carried out all the construction over and above the said plot. Probably no Municipal Number has yet been allotted". The landlady prayedthat the tenant be directed to produce the said sale deed that stood in hiswife s name. The Additional Rent Controller directed production of the sale-deed, if possible, by 3/07/1978. ( 17 ) IN his reply to this application, the tenant admitted that H. No. 27/109 (3-B), Jwala Nagar had been purchased by his wife, Shakuntala Sharma. However, he asserted that the property was being used by Sa. rva Hitkarishiksha Kendia and the cost of construction and purchase of the propertyhad been borne by his wife and he had not invested any amount. He furtherasserted that since the property had been purchased by his wife, he was notin possession, of the sale-deed. ( 18 ) MR. Bal Kishan Dass, A. W. I has stated that this property at Jwalanagar was "rehashi". No objection was taken to this statement. He furtherasserted that since the property had been purchased by his wife, he was notin possession, of the sale-deed. ( 18 ) MR. Bal Kishan Dass, A. W. I has stated that this property at Jwalanagar was "rehashi". No objection was taken to this statement. Furtherno objection was taken in the written statement that the petition did notdisclose any cause of action. Only a case of complete denial had been madeout is above noticed. ( 19 ) IN Mr. Kundul Lal Mehta and others v. Smt. Parkashwati, 1980 (2)RCJ. 551 , Mr. Justice Sultan Singh has noted that if all the ingredientsconstituting a cause of action within the meaning of clause (e) of section 14 (1)are not pleaded and proved the landlord is not entitled to an order ofeviction. It is also well known that no evidence can be looked at on a pleawhich was never raised in the pleadings. But in paragraph 9 of the saidjudgment, the learned Judge has noted "it is correct that the ingredients 1 to 4required to be pleaded are not pleaded in the eviction application. No objectionwas taken by the appellants tenants in their written statement that theeviction petition does not disclose any cause of action. It was also neverargued before the Controller and the Rent Control Tribunal. When evidencewas being led before the Controller, it appears that no objection was raisedagainst the recording of the evidence with regard to whether the premiseswere let out only for residence or for both residence and commercial purposein view of the written statement of the tenant. The tenant also filed anapplication before the Tribunal saying that the landlord had reasonablysuitable accommodation and sought premission to lead evidence. At theinstance of the tenant himself the Tribunal determined the question whetherthe landlady has any other reasonable suitable accommodation. Should thelandlady be non-suited now for not pleading these two material ingredientsunder section 14 (l) (e) of the Act. ". The learned Judge referred to the caseofabdul Hamid v. Nur Mohammad. , (supra), Banke Ram v. Smt. Sarasvatidevi (supra) and Onkarnalh\. Vedvyas, 1978 (2) R. C. J. 158 and observedthat the view of this court in Hans Raj Dawar v. Shyam Kishore, the 1977 (2)253, is that "inadequacy of the pleadings, if any, is, not fatal" if no prejudicehas been caused to the parties. , (supra), Banke Ram v. Smt. Sarasvatidevi (supra) and Onkarnalh\. Vedvyas, 1978 (2) R. C. J. 158 and observedthat the view of this court in Hans Raj Dawar v. Shyam Kishore, the 1977 (2)253, is that "inadequacy of the pleadings, if any, is, not fatal" if no prejudicehas been caused to the parties. The learned Judge also felt that since theparty knew the points of controversy and was not taken by surprise, noprejudice was caused to him. The tenant could not be allowed to raise theplea for the first time in second appeal. He also observed that if the objectionhad been taken in the written statement the landlady could have cured the defect. She is now taken by surprise in the second appeal. As the objection had notbeen taken at the first instance and evidence had been recorded without anyprejudice, on facts, which were not pleaded, the objection could not be raised. The objection that the plaint does not disclose any cause of action must betaken at the earliest and the court on examination, if it finds the objectionvalid, may reject the plaint under Order VII Rule 11. Civil Procedure Code. However, the court can before rejecting the plaint allow the same to beamended if an amendment is applied for. ( 20 ) IN Arvind Berry v. Rear Admiral A. P. S. Bindra. A. I. R. 1985 Delhi249, the same learned Judge observed that no part of evidence can be lookedinto on a plea which was never raised, but the facts of each case haveto be considered. It has to be seen whether any prejudice was causedto a party in case of failure of proper pleadings. If a plea is notspecifically raised and it is known by implication to the parties, the mere factthat the plea was not specifically taken in the pleadings would not necessarilydisentitle the party, if it is satisfactorily proved by evidence and no prejudicehas been caused. It was once again reiterated that plea of non-disclosure ofcause of action within the meaning of Order VII Rule J I, Civil Procedure Code,out to be raised at the earliest. It had not been raised it is deemed to havebeen waived. The court felt that a party could not be allowed to raisesuch a plea in second appeal or revision at the time of execution after sevenyears of the institution of the eviction case. Mr. It had not been raised it is deemed to havebeen waived. The court felt that a party could not be allowed to raisesuch a plea in second appeal or revision at the time of execution after sevenyears of the institution of the eviction case. Mr. Justice Sultan Singh dealtwith all his earlier decisions while disposing of the second appeal. ( 21 ) IN Rattan Lal v. Vardesh Chander and others. A. I. R. 1976 S. C. 588, Mr. Justice V. R. Krishna Iyer speaking for the court opined in paragraph 10: " The Rent Act contemplates no elaborate pleadings but filling outof particulars in a proforma which takes the place of a plaint. Nospecific averment of forfeiture and consequent determination of thelease is found in the petition. Having regard to the comparativeinformality of these proceedings and the quasi-judicial nature of thewhole process, such an omission cannot be exaggerated into a lethalinfirmity. " ( 22 ) IN S. B. Noronah v. Prem Kumari Khanna, A. I. R. 1980 S. C. 193,once again Mr. Justice V. R. Krishna lyer, speaking for the bench has opined : " Pleadings are not statutes and legalism is not verbalism. Commonsense should not be kept in cold storage when pleadings are construed. It is too plain for words that the petition for eviction referredto the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clearthat law should not be stultified by courts by sanctifying littleomissions as fatal flaws. The application for vacant possessionsuffered from no verbal lacunae and there was no need to amendat all. Parties win or lose on substantial questions, not technicaltortures and courts cannot be abettors . " ( 23 ) IN Brigadier Pritain Pal Singh (Retd) v. Shri V. P. Roman,1982 (2) RCR 227, Mr. Justice Yogeshwar Dayal, quoted the view of Chiefjustice Gajendragadkar that it is necessary to bear in mind the other principlethat considerations of form cannot over-ride the legitimate considerations ofsubstance. If a plea is not specifically made and yet it is covered by an issueby implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings wouldnot necessarily dis-entitle a party from relying upon if it is satisfactorily provedby evidence. If a plea is not specifically made and yet it is covered by an issueby implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings wouldnot necessarily dis-entitle a party from relying upon if it is satisfactorily provedby evidence. The general rule no doubt is that the relief should be foundedon pleadings made by the parties. But where the substantial matters relatingto the title of both parties so the suit are touched, though indirectly or evenobscurely in the issues, and evidence hasbeen led about them, then theargument that a particular matter was not expressly taken in the pleadingswould be purely formal and technical and cannot succeed in every case. Whatthe court has to consider in dealing with such an objection is : did the partiesknow that the matter in question was involved in the trial, and did they leadevidence about it. The learned Judge after referring to a catena of authoritiesobserved that the test is whether parties in spite of something missing in thepleadings go to trial with full knowledge of the issues involved and both partieslead evidence in that behalf and there is no prejudice caused to either party,it would not prove fatal to the suit. ( 24 ) IN Man Mohan Mehra v. J. S. Butalia, A. I. R. 1984 Delhi 32, Mr. Justice M. L. Jain referred to the earlier decisions and was of the view that anapplication cannot be thrown out if the cause of action can be implied or if itis partly pleaded. The omission can be rectified by supplying better particulars or in the replication or by way of amendment. In that case the learnedjudge was of the view that the application could not be rejected or dismissedeven though it failed to allege all the ingredients of section 14 (l) (e) of the Actand even though the objection was taken in the written statement because allthe grounds are implied in the various facts stated in the application and therewas no need of any amendment, and at any rate, the replication specificallycontained all the averments and is a part of the pleadings. ( 25 ) IN the present case, as already noted, the house at Jwala Nagar isthe property of the tenant s wife. The plot was purchased in 1971. Theconstruction was completed in 1975. ( 25 ) IN the present case, as already noted, the house at Jwala Nagar isthe property of the tenant s wife. The plot was purchased in 1971. Theconstruction was completed in 1975. The wife is allegedly running a schoolknown as Sarva Shiksha Kendra in the said premises. The sale-deed pertainingto the said premises was not produced despite an application for production asit was stated that the property belonged to the tenant s wife. A plan of theproperty was also not produced. The assertion that the property was let outto a school in 1972 does. not appear to be correct as it is the case of the tenanthimself that the construction was only completed in 1975. Admittedly, thethe school is run by the tenant s wife. There is nothing on the record toindicate that it is let out to any one else. The fact that the building is beingused for a school is not relevant if the building was built for residence. If thetenant s wife is using it for a school, it will not take it out of the purview ofthe vacant residential accommodation. As observed in Sh. Ganpat Ram v. Smt. Gayatri Devi, 1980 (2) RCJ 624 by Mr. Justice Sultan Singh, if a tenant hasa house and does not occupy it and allows others to occupy the same, he cannot be protected. The Act provides that building of a house by a tenant orallotment of a residence to him is a ground available to the landlord, to ejecthim. ( 26 ) IN view of the facts and for the reasons outlined above, it is clearthat on a reading of the petition, as a whole, it is apparent that the words"vacant alternative accommodation" refer to vacant residenital accommdationbecause it was alternative to the residental accommodation mentioned in paragraph 4 of the petition. It is also clear from the notice dated 28/02/1974, that the parties knew from the start what was the point at issue as thenotice clearly referred to residental accommodation. ( 27 ) THE application for discovery, while referring to the eviction petition,mentioned that the petition had been filed on the ground of vacant alternativeresidential accommodation acquired by the tenant. It is also clear from the notice dated 28/02/1974, that the parties knew from the start what was the point at issue as thenotice clearly referred to residental accommodation. ( 27 ) THE application for discovery, while referring to the eviction petition,mentioned that the petition had been filed on the ground of vacant alternativeresidential accommodation acquired by the tenant. ( 28 ) IT is, therefore, clear that the word "residential" has been omittedfrom paragraph 18 (a) (iii) by inadvertence but from the tenor of the petitionit is apparent that it referred to residential accommodation as it used the word"alternative". An innocuous omission of this type cannot result in the petitionbeing rejected under Order VII Rule II, Civil Procedure Code, as the cause ofaction is apparent from a full reading of the petition and was dear to thetenant, as is obvious from the written statement. Further the fact that theobjection was not raised in the written statement, nor before the Rent Controller is significant. It was raised from the first time before the Tribunal. Counsel for the tenant contends that since the point was raised before thetribunal and not for the first time in second appeal, as in the cases mentionedearlier, the petition should be rejected under Order VII Rule 11, Civil Procedurecode, I do not agree. First, because I am of the opinion that the petitionitself, read as a whole, does disclose a cause of action ; and secondly, even ifit didn t, the objection must be taken at the earliest stage so that anopportunity to cure the defect can be given, if requested. As such, the factthat the point was raised before the Tribunal and not for the first time insecond appeal is not of much relevance. ( 29 ) THE next point urged by counsel for the tenant is, that, assumingbut not admitting, that residential accommodation had been acquired by him,the petition should have been rejected as being belated, since admittedly itwas filed in May. 1976. Reliance was placed on a decision of Mr. Justiceavadh Behari in Gian Singh v. Tarlok Singh, 1975 RLR 340 . In that case thelearned Judge had observed that if a tenant is allotted a residence, the landlord,if he wishes to file a petition under section 14 (1) (h) of the Act, must suesoon. 1976. Reliance was placed on a decision of Mr. Justiceavadh Behari in Gian Singh v. Tarlok Singh, 1975 RLR 340 . In that case thelearned Judge had observed that if a tenant is allotted a residence, the landlord,if he wishes to file a petition under section 14 (1) (h) of the Act, must suesoon. The learned Judge however, did not follow a Division Bench decisionof this Court in Batto Mal v. Rameshwar Nath, 1970 RCR 532, wherein it hadbeen held that the tenant was liable to be ejected if he- had once beenallotteda quarter and it did not matter if he surrendered possession thereof before theinstitution of the suit. However, the learned Judge held that if before theinstitution of a suit, the tenant surrenders the allotted premises, then he cannotbe sued under section 14 (1) (h) of the Act. ( 30 ) A Division Bench of this court in Hem Chand Baid v. Smt. Premwati Parekh, A. I. R. 1980 Delhi l observed that the decision of the Divisionbench in Battoo Mal s case (supra) was a direct authority on the interpretation of sub-clause (h) of secton 14 (1 ). It also observed that a decision of adivision Bench is a binding precedent fora Single Judge of the Court. Thejudgment in Battoo Mal s case (supra) was pronounced on 6/05/1973. On 20/07/1970, Mr. Justice P. S. Safeer pronounced a Judgment in Ved Prakash v. S. H. Chuni Lal, 1971 Delhi L. T. 59, wherein he took a contraryview as the decision of the Division Bench had not been brought to his notice. Five year later in Gian Chand s case (Supra), Mr. Justice Avadh Behari againtook a contrary view to the Division Bench agreeing with the view taken bymr. Justice P. S. Safeer in Vedprakash"s case (supra ). He reiterated hisview once again in Shri Muni Lal v. Shri Dulara Si ugh and another, 1976r. C. R. 220. The Division Bench observed that Single Judges were bound bythe decision of the Division Bench in Battoo Mal s case (supra ). Mr. Justices. B. Wad speaking for the Bench stated in paragraph 9 as follows : "two propositions appear to be well settled by the Division Benchin Battoo Mal s case. I, that once protection is lost by atenantbyhisdefault,undercl. (h), it is lost for ever and cannot be revived at any pointof time or under any circumstances;2. Mr. Justices. B. Wad speaking for the Bench stated in paragraph 9 as follows : "two propositions appear to be well settled by the Division Benchin Battoo Mal s case. I, that once protection is lost by atenantbyhisdefault,undercl. (h), it is lost for ever and cannot be revived at any pointof time or under any circumstances;2. that the landlord s right of eviction might get defeated byapplication of general principles of waiver or laches in exceptional cases. The first proposition is a direct authority on interpretation ofcl, (h) of the proviso to S. 14 (1) of the Act. The second propositionis a reiteration of a general principle of law, which the D. B. wascareful in pointing out was of no application to the facts of Battoo smal s case. The learned single Judge in Gian Singh s case held thatbattoo s Mal s case was a decision on the particular facts of thatcase. With respect we do not agree. A pure question of law regarding the interpretation of cl. (h) of the proviso to S. 14 (1) of theact was referred by a learned single Judge for the decision of thedivision Bench in that case and, the decision, therefore, is notrestricted to the facts of that case. We also do not agree with thelearned single Judge that the general principle of waiver or lachesreferred to in Battoo Mal s case is the "quintessence" of Battoomal s case. " ( 31 ) CONSEQUENTLY, as far as the proposition of interpretation is concernedthere can be no doubt that if the tenant has acquired alternate vacant possession of a residence then he comes within the purview of section 14 (l) (h) ofthe Act. ( 32 ) ON the factual aspect also there is nothing, in the present case, toindicate why the landlord s right to eviction should be defeated on the principleof waiver or laches that it is an exceptional case. In fact, as stated by Mr. Rupchand, in his evidence, his wife purchased the plot in 1971 and the construction was completed only in 1975. The petition was moved in May, 1976. Itcannot be said to be a case of laches of an exceptional nature. Further, it isalso the tenant s case that his wife is running a school in the said premises. ( 33 ) IN T. N. Idnani v. A. D. Khanna, 32 (1987) DLT 223=1987 R. L. R. 33,mr. The petition was moved in May, 1976. Itcannot be said to be a case of laches of an exceptional nature. Further, it isalso the tenant s case that his wife is running a school in the said premises. ( 33 ) IN T. N. Idnani v. A. D. Khanna, 32 (1987) DLT 223=1987 R. L. R. 33,mr. Justice Sultan Singh opined that it is well known that there is no estoppelagainst statute. He also observed that there was no question of waiver and inany case, facts relating to waiver had not been pleaded. In that case a tenanthad admittedly acquired residential accommodation in 1972, but the applica-lion was moved in 1984 and the learned Judge observed that the knowledge ofthe construction of the residential house was immaterial. If the conditionsprescribed under section 14 (l) (h) of the Act were fulfilled, then the landlordwas entitled to an order of eviction against the tenant. The only requirementbeing, "that the tenant has, whether before or after the commencement of theact, built, acquired vacant possession of, or been alloted, a residence". ( 34 ) AS already noticed earlier the tenant Rup Chand has acquiredvacant possession of a residence through his wife. This is available to him. Assuch the case come within the purview of section 14 (l) (h) of the Act. Further,as noticed above, there is nothing on record to establish that this is anexceptional case where the landlady s right of eviction has to be defeated bythe application of general principles of waiver or laches. ( 35 ) CONSEQUENTLY, the appeal is dismissed. There will be no order asto costs.