S. N. Sapra ( 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. ( 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 mintainable. Issueno. 2 was also decided in favour of appellant. The trial court, decreed the suitof plaintiff, vide judgment dated 18/04/1987. ( 11 ) AGGRIEVED by the judgment and decree of the trial court, respondent filed Regular Civil Appeal no. 99 of 1987, before the Senior Sub Judge,delhi. Issueno. 2 was also decided in favour of appellant. The trial court, decreed the suitof plaintiff, vide judgment dated 18/04/1987. ( 11 ) AGGRIEVED by the judgment and decree of the trial court, respondent filed Regular Civil Appeal no. 99 of 1987, before the Senior Sub Judge,delhi. In appeal, before the First Appellate Court, the only submission, madeon behalf of the present respondent, was that plaintiff, at nowhere alleged in theplaint that, the premises had been let out to Smt. Ganga Devi, for residentialpurposes only. As such, plaint did not disclose any cause of action. The Firstappellate Court accepted the contention of the respondent and held thatplaintiff bad no cause of action, to file the suit for. possession. As a result,plaint was rejected under Order 7, Rule 11 C. P. C. ( 12 ) VARIOUS contentions have been urged before me, by Mr. Ishwar Sahai, learned counsel for appellant. ( 13 ) IT has been urged by Mr. Ishwar Sahai that ail the necessaryingredients, constituting the cause of action, were stated in the plaint. It isnot necessary to state specifically, in the plaint, that the premises were letout for residential purposes, to claim the. relief of possession. According tomr. Sahai, the only requirement of law, as held by their Lordships of Supreme Court in Smt. Gian Devi Anand v. Jeevan Kumar and others. AIR 1985 Supreme Court, 796, is that the premises should be residential and the inheritance wouldbe by specified heirs, as mentioned in Section 2 (L) of the Act. A close readingof the plaint, will show that the premises were residential premises, and Smt. Ganga Devi, deceased tenant, was residing in the premises. Further, respondent, the only heir of his mother, was not entitled to inherit the tenancy rights,as, he was not living with his mother, at the time of her death. ( 14 ) THE next contention, urged by Mr. lshwer Sahai is that, omissionto mention in plaint, that the premises were let out for residential purposes,has no adverse affect, as no prejudice was caused to respondent, because,the case of respondent, in his written statement, was that his deceased motherresided with her husband, the wife of respondent and his three children in oneroom. Respondent also claimed inheritance of tenancy rights, on the ground,that he was residing with his mother and was financially dependent upon her. Respondent also claimed inheritance of tenancy rights, on the ground,that he was residing with his mother and was financially dependent upon her. ( 15 ) IT was also been urged that in the written statement, respondentdid not raise any plea that the plaint did not disclose any cause of action, onthe ground, that plaintiff failed to mention that the permises had been let outfor residential purpose. As, no plea was raised by respondent, so, no issuewas framed on that. Mr. Ishwar Sahai also urges that the nature of the tenanted premises is such, that the same could only be for residential purposes as,the tenancy premises consisted of one room and common verandah, which iswithin a huge residential building. ( 16 ) RELIANCE has been placed on the judgments in Shri Gurdial Nagdev v. Smt. Devi Bal, 1079 (1) Rent Control Reporter, 119, Rup Chand v. Shanti Devi32 (1987) Delhi Law Times 269; Arvind Berry v. Rear Admiral A. P. S. Bindra,air 1985 Delhi 248 and Smt. Gian Devi Anand v. Jeevan Kumar and Othersair 1985 Supreme Court 796. ( 17 ) MR. C. P. Wig, learned counsel for respondent, has urged that inorder to succeed, it was mandatory for the appellant to plead that the permiseswere let out for residential purposes. . Section 2 (L) of the Act, only definesthe word tenant , and, as such, it does not override the provisions of Section 14 (1) (e)of the Act. Hehas-placed reliance upon the judgment in Edwin Brave v. Hari Chand 21 1982 Delhi Law Times 209. ( 18 ) IN Shri Gurdial Nagdev (supra), Mr. Justice M. L. Jain observedthat failure to plead the ingredients, in a petition for eviction, under Section 14 (l) (e) of the Ace, did not necessarily result indismissal of the petition,if parties knew, the points in controversy and, none was taken by surprise. The tenant was not permitted to raise technical objections, in revision. It washeld; "i have looked into the application. The landlady mentionedthat the premises let out to the respondent are residential and arebeing used by him for residential purposes. That in other wordsclearly means that the premises were let out for residential purpose. Though, it is not mentioned that she has no other accommodationbut the very fact that the present premises are not sufficient for allthe members of the family implies that other accommodation isreally not available. That in other wordsclearly means that the premises were let out for residential purpose. Though, it is not mentioned that she has no other accommodationbut the very fact that the present premises are not sufficient for allthe members of the family implies that other accommodation isreally not available. There has thus been a sufficient compliance ofthe requirements of Section 14 (l) (e ). The tenant had sufficient noticeof the case set up by the landlady and both the parties knew wellthe points of controversy between them and no one was taken bysurprise. It will be an improper exercise of discretion if he werenow permitted to raise this technical objection. Moreover, failureto plead the ingredients does not. necessarily result in dismissal ofthe petition. I, therefore, find no force in this contention. It wasalso suggested by the petitioner that the premises were let out forcommercial purposes which is, it was said, borne out by the allega-tion in f e notice that the residential premises are being used forcommercial purposes. But this is belied by the receipt given by thetenant in which he has described the premises as residential. Even inhis affidavit he has admitted that the premises were let out forpurposes of residence and business both and did not say that theywere let out for business purposes only. " ( 19 ) IN Rup Chand, (supra) one of the questions, which arose fordecision, was, whether the landlady mentioned all the necessary ingredients inher. petition, for eviction, filed under Section 14 (. l) (a) and (h) of the Act, andthat the plea, with regard to the same cause of action, could be raised, forthe first time, in the second appeal. Ms. Justice Leila Seth, after taking intoconsideration the various judgments, held : "in Mr. Kundan Lal Mehta and Others v. Smt. Parkashwati, 1980 (2) RCJ 551 , Mr. Justice Sultan Singh has noted that if allthe ingredients constituting a cause of action within the meaning ofclause (e) of Section 14 (1) are. not pleaded and proved the landlordis not entitled to an order of eviction. It is also well known thatno evidence can be looked at on a plea which was never raised inthe pleadings. But in paragraph 9 of the said judgment, the learnedjudge has noted "it is correct that the ingredients 1 to 4 requiredto be pleaded are not pleaded in the eviction application. It is also well known thatno evidence can be looked at on a plea which was never raised inthe pleadings. But in paragraph 9 of the said judgment, the learnedjudge has noted "it is correct that the ingredients 1 to 4 requiredto be pleaded are not pleaded in the eviction application. No objection was taken by the appellants tenants in their written statementthat the eviction petition does not disclose any cause of action. Itwas also never argued before the Controller and the Rent Controltribunal. When evidence was being led before the Controller, itappears that no objection was raised against the recording of theevidence with regard to whether the premises were. let out only forresidence or for both residence and commercial purpose in view - ofthe written statement of the tenant. The tenant also filed an application before the Tribunal saying that the landlord had reasonablysuitable accommodation and sought permission to lead evidence. Atthe instance of the tenant himself the Tribunal determined thequestion whether the landlady has any other reasonable suitableaccommodation. Should the landlady be non-suited now for notpleading these two material ingredients under section 14 (l) (e) of theact". The learned Judge REFERRED TO to the case of Abdul Hamid v. Nur Mohammad (supra) Banke Ram v. Smit. Sarasvati Devi (supra) andonkarnath v. Ved Vyas, 1978 (2) R. C. J. 158 and observed that the view of this Court in Hans Raj Dawar v. Shyam Kishore, the1977 (2) R. C. J. 253, is that "inadequacy of the pleadings, if any, is, notfatal" if no prejudice has been caused to the parties. The learnedjudge also felt that since the party knew the points of controversyand was not taken by surprise, no prejudice was caused to him. Thetenant could not be allowed to raise the plea for the first time insecond appeal. He also observed that if the objection had beentaken in the written statement the landlady could have cured thedefect. She is now taken by surprise in the second appeal. As theobjection had not been taken at the first instance and evidence hadbeen recorded without any prejudice, on facts, which were notpleaded, the objection could not be raised. The objection that theplaint does not disclose any cause of action must be taken at earliestand the Court on examination, if it finds the objection valid, mayreject the plaint under Order VII Rule 11, Civil Procedure Code. The objection that theplaint does not disclose any cause of action must be taken at earliestand the Court on examination, if it finds the objection valid, mayreject the plaint under Order VII Rule 11, Civil Procedure Code. However, the Court can before rejecting the plaint allow the same tobe amended if an amendment is applied for. " ( 20 ) IN Arvind Berry, (supra) Mr. Justice Sultan Singh held : "learned counsel for the appellant further argues that thepurpose of letting the suit premises was not pleaded. The evidenceof the landlord was recorded without any plea. He says that thoughdocumentary evidence in the form of Ext. AW. 1/10 wherein tenantadmits that premises will be used for residence is on the record,but the same cannot be looked into. According to him, it is wellestablished principles of law that no part of evidence can be lookedinto on a plea which was never raised. The principle is no doubttrue, but the facts of each case have to be considered. It has tobe seen whether any prejudice was caused to a party in case offailure of proper pleadings. In Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 , it has been observed that evidence led on issueson which the parties actually went to trial should not be madethe foundation for decision of another and different issue, whichwas not present to the minds of the parties and on which they had noopportunity of adducing evidence. It has been further observed thatsuch a rule has no application to a case where parties go to trial withknowledge that a particular question is in issue, though no specificissues has been framed thereon and adduce evidence relatingthereto. In the instant case, the appellant-tenant himself placed onrecord the letter Ext. A. W. 1/10 dt. 15/01/1976 showingthat the premises were let to him for use as residence. He wasalso aware of the ground of eviction undersection 14 (l) (e)of theact. In the preseat case, the appellant and the respondent knew allthe pleas in dispute to be proved. It seems to me that if a plea is notspecifically made and it is known by implication to the parties,the mere fact that the plea was not specifically taken in thepleadings would not necessarily disentitle the party, if it is satisfactorily prpved by evidence and no prejudice was caused. It seems to me that if a plea is notspecifically made and it is known by implication to the parties,the mere fact that the plea was not specifically taken in thepleadings would not necessarily disentitle the party, if it is satisfactorily prpved by evidence and no prejudice was caused. In the instant case, the appellant-tenant did not plead thatthe eviction application did not disclose any cause of action. Theevidence was led without any objection regarding absence of plea. The compromise was affected and it was submitted by him that onthe basis of evidence on record and otherwise, a decree against himunder Section 14 (l) (e) of the Act be passed. As already stated,there is sufficient material on record to substantiate all theingredients required to be proved for an order of eviction undersection 14 (l) (e)oftheact. Thus, it cannot be said that failure toplead all the ingredients of Section 14 (l) (e) of the Act in the presentcase resulted in any prejudice to the appellant and as such evictionorder cannot be set aside and cannot be held unexecutable. Theplea of non-disclosure of cause of action within the meaning oforder 7 Rule 11 of the Civil Procedure Code, ought to have beenraised at the earliest. If it had not been raised, it is deemed tohave been waived. In the instant case, no such plea was ever made. Had a plea been raised, the respondent would have taken steps toamend the petition. He is now in Second Appeal taken by surprise. A party cannot be allowed to raise such a plea in Second Appealor Revision at the time -of execution after about 7 years of theinstitution of the eviction case, specially where no prejudice has beencaused to him. "( 21 ) IN Smt. Giandevi Anand (supra), their Lordships of Supremecourt observed: "the amendment to the definition of tenant with retrospective effect introduced by the Delhi Rent Control Amendment Act (Act 18 of 1976) to give personal protection and personal right ofcontinuing in possession to the heirs of the deceased statutory tenantin respect of residential premises only and not with regard to the heirsof the so-called statutory tenant in respect. of commercial premisesdoes not imply that those heirs do not enjoy any protection underthe Act. of commercial premisesdoes not imply that those heirs do not enjoy any protection underthe Act. Section 2 (l) (iii) of the Act does not create any additionalor special right in favour of the heirs of the so-called statutory tenanton his death, but seeks to restrict the right of the heirs of suchtenant in respect of residential premises. The termination of thecontractual tenancy in view of the definition of tenant in the Actdoes not bring about any change in the status and legal positionof the tenant, unless there are contrary provisions in the Act; and,the tenant notwithstanding the termination of tenancy does enjoy anestate or interest in the tenanted premises and that interest inheritable. In the absence of the provision contained in sub-section 2 (l) (iii),therefore, the heritable interest of the heirs of the statutory tenantwould devolve on all the heirs of the so-called statutory tenant onhis death and the heirs of such tenant would in law step into hisposition. Sub-section (iii) of Section 2 (1) seeks to restrict this rightin so far as the residential premises are concerned. The heritabilityof the statutory tenancy which otherwise flows from the Act isrestricted in case of residential, premises only to the heirs mentionedin Section 2 (l) (iii) and the heirs therein are entitled to remain inpossession and to enjoy the protection under the Act in the mannerand to the extent indicated in sub section 2 (l) (iii)". ( 22 ) IN Edwin Brave (supra), Mr. Justice Sultan Singh held that, whereall the essential ingredients of Section 14 ( I ) (e) of the Act, were not pleaded inthe eviction petition, the provision of Order 7 Rule IIC. P. C. were attractedand the petition was liable to be rejected. It was further held that the provisionsof Order 7 Rule 11cpc were mandatory, and, if the eviction petition, didnot contain the facts, constituting the cause of action, then, the petition wasliable to be rejected and amendment could not be allowed. It was further heldthat the mere fact that in the eviction petition, it was mentioned that thepremises were residential or that the tenant was residing therein, with hisfamilly, do not mean that the premises were let for residence, ( 23 ) NO-DOUBT, in the definition of the tenant, under Section 2 (L) ofthe Act, only there is a reference to "live". There is no reference to the purposeof letting. There is no reference to the purposeof letting. I do not feel it necessary to go into this controvesy, whether in asuit for possession, it is essential to plead and prove that the premises were letout for residential purposes.- ( 24 ) SECTION 2 (L) of the Act reads as under :- "2 (L ). "tenant" means any person by whom or on whoseaccount or behalf the rent of any premises is, or, but for a specialcontract, would be, payable, and includes : (i) a sub-tenant; (ii) any person continuing in possession after the termination ofhis tenancy; and (lii) in the event of the death of the person continuing in possessionafter the termination of his tenancy, subject to the order ofsuccession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaidperson s: (a) spouse, (b) son or daughter, or where there are both son and daughter,both of them, (e) parents, (d) daughter-in-law, being the widow- of his pre-deceascd son,as had been ordinarily living in the premises with suchperson as a member or members of his family upto thedate of his death, but does not include- (A) any person against whom an order or decree for evictionhas been made, except where such dercee or order for eviction isliable to be re-opened under the proviso to Section 3 of the Delhirent Control (Amendment) Act, 1976; (B) any person to whom a licence, as defined by Section 52of the Indian Easements Act, 1882 has been granted. Explanation 1.-The order of succession in the event ofthe death of the person continuing in possession after the termination of his tenancy shall be as follows : (a) firstly, his surviving spouse; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarilylive with the deceased person as a member of his familyup to the date or his death; (e) thirdly, his parents, if there is no surviving spouse, son ordaughter of the deceased person, or if such surviving spouseson or daugther or any of them, did not ordinarily live inthe premises as a member of the family of the deceasedperson up to the date of his death; and (d) fourthly, his daughter-in-law, being the widow of hispredeceased son, if there is no surviving spouse, son,daughter or parents of the deceased person, or if suchsurviving spouse, son, daughter or parents, or any of them,did not ordinarily live. in the premises as a member of thefamily of the deceased person up to the date of his death. Explanation II. If the person, who acquires, by succession,the right to continue in possession after the termination of thetenancy, was not financially dependent on the deceased personon the date of his death, such successor shall acquire suchright for a limited period of one year; and, on the expiry ofthat period, or on his death, whichever is earlier, the right ofsuch seccessor to continue in possession after the termination ofthe tenancy shall become extinguished. Explanation III.-For the removal of doubts, it is herebydeclared that- (a) where, by reason of Explanation, II, the right of anysuccessor to continue in possession after termination of thetenancy becomes extinguished, such extinguishment shall notaffect the right of any other successor of the same categoryto continue in possession after the termination of thetenancy; but if there is no other successor of the samecategory, the right to continue in possession after termination of the tenancy shall not, on such extinguishment,pass on to any other successor, specified in any lowercategory or categories, as the case may be; (b) the right of every successor, REFERRED TO to in Explanation I,to continue in possession after the termination of thetenancy, shall be personal to him and shall not, on thedeath of such successor, devolve on any of his heirs. " ( 25 ) IN the plaint, appellant did not mention that the premises werelet out to Smt. Ganga Devi, for residential purposes. However, it was allegedthat Smt. Ganga Devi, was resident of 4896, Laddoo Ghati, Paharganj, Newdelhi. Paras 1 and 5 of the plaint read as under : "i. That Smt. Ganga Devi, widow of late Shri Tara Singh,resident of 4896, Laddoo Ghati, Paharganj, New Delhi, was a tenantunder the plaintiff with respect to one room and verandah on theground floor of property bearing no. . 4896, Laddoo Ghati, Paharganj,new Delhi, at a rent of Rs. 10. 00 per month. The tenancy wasaccording to English Calendar commencing on the first and endingon the last day of the month. The tenancy premises of Smt. Gangadevi are shown in red colour in the plan attached herewith. 5. That the defendant was not financially dependent on thedeceased Smt. Ganga Devi and was also not residing with her. Heis a loading Fireman with the Delhi Fire Service posted at Motinagar Fire Station and had been allotted a quarter no. A-3 at thefire service station where he had always been residing with hisfamily members. Thus, he was neither dependent on the deceasedsmt. Ganga Devl nor was he residing with her at the time of herdeath. The defendant thus did not inherit any right of tenancy inrespect of the premises aforesaid on the death of Smt. Ganga Devi. Under the relevant provisions of the Delhi Rent Control Act, thedefendant could retain the premises for a period of one year onlyafter the death of the deceased. " ( 26 ) IT will be useful to reproduce paras 1 and 5 of the written statement, which are as under :- "para I of the plaint of the plaintiff is admitted to becorrect excepting the tenancy premises allegedly shown in red colourin the plan attached since no copy of the site plan has been madeavailable to the defendant. Para no. 5 of the plaint of the plaintiff is wrong and deniedto be correct. It is also specifically denied that the defendant wasnot financially dependent on deceased Smt. Ganga Devi and wasalso not residing with her. In this connection it is submitted thatthe defendent has been continuously living with dece. ased Smt. Ganga Devi till her death since childhood of the defendant. It is also specifically denied that the defendant wasnot financially dependent on deceased Smt. Ganga Devi and wasalso not residing with her. In this connection it is submitted thatthe defendent has been continuously living with dece. ased Smt. Ganga Devi till her death since childhood of the defendant. It isfurther submitted that while it is admittedthat the defendant is inservice with Delhi Fire Service and has been allotted a quarter, butit is submitted that the defendant and his children have been livingin the suit premises. Further, all the four children of the defendantalong with their mother are continuously living in the suit premises,while the defendant also has been living in the premises, apart fromhaving his voting rights and ration card in the said area. Thequarter allotted to the defendant is rarely used by the defendant andthat too for emergency and/or unavoidable reasons. It is furthersubmitted that after the death of the original tenant Smt. Gangadevi in the absence of the termination of her tenancy the defendanthas become tenant in the suit premises, and the plaintiff has gotno right to claim any possession of the said premises. Even assuming that the plaintiff has any right to evict the defendant from thesuit premises the plaintiff can do so under the Delhi Rent Controlact only. " ( 27 ) NO-DOUBT, the words residential or let out for residential purpose . have been omitted in the plaint. But, from the tenor of the plaint. It becomesclear that plaintiff REFERRED TO to residential accommodation, where late Smt. Ganga Devi was residing. This becomes further clear, from paras 1 and 5 ofthe written statement. Defence, taken by respondent was, that he had been continaously living with his mother, till her death, since his childhood. Not onlythis, respondent also categorically stated that he and his children had beenliving in the suit premises, along with late Smt. Ganga Devi, till her death. ( 28 ) IT is, thus apparent, from the full reading of the pleadings, that thepremises in question, not only were for residential, but were let out for residential purposes. For the omission, on the part of appellant, to specificallystate that the permises were let out for residential purposes, the plaint could notbe rejected, under. Order 7 Rule II C. P. C. , as, the cause of action was clear,from the reading of the pleadings. For the omission, on the part of appellant, to specificallystate that the permises were let out for residential purposes, the plaint could notbe rejected, under. Order 7 Rule II C. P. C. , as, the cause of action was clear,from the reading of the pleadings. ( 29 ) INFACT, there was no controversy, between the parties, with regardto the purposes of letting and/or the nature of the premises. In other words, theparties knew fully well, that not only the premises were residential, but samewere let out for residential purposes. With this knowledge and understanding,both the parties went to the trial. It means, that omission on the part ofappellant, to state the purpose of letting out as residential, did not cause,any prejudice to respondent. It may also be noticed that, in his cross-examination, respondent admitted, that his mother was residing in the premises andwas not doing any work there. It was rather the case of respondent that, tillthe death of his mother, he was residing with his mother. ( 30 ) IN his written statement, no plea was taken by respondent, thatthe plaint did not disclose any cause of action, for the reason, that plaintifffailed to mention the purpose of letting. For the first time, this point wasraised before the First Appellate Court. ( 31 ) UNDER the facts and circumstances of the case, this point, could notbe allowed to be raised, for the first time, before the Appellate Court, becauseno prejudice had been caused to respondent, on account of the omission, onthe part of appellant, to state the purpose of letting out. Moreover, as,observed above, the parties knew fully well, as to what was the controversy inthe suit. ( 32 ) I am in full agreement, with the views, of Ms. Justice Leila Seth,as expressed in Rup Chand (supra ). The facts of case in Edwin Brave (supra), arenot applicable, to the facts and circumstances of the present case. ( 33 ) IN my opinion, the close reading of the plaint, does indicate, thatthe premises were residential. The combined reading of the plaint and writtenstatement, also indicates that, the premises were residential premises and thesame were let out for this purpose. This view finds support from the cross-examination of respondent. In other words, the plaint did disclose cause ofaction. ( 33 ) IN my opinion, the close reading of the plaint, does indicate, thatthe premises were residential. The combined reading of the plaint and writtenstatement, also indicates that, the premises were residential premises and thesame were let out for this purpose. This view finds support from the cross-examination of respondent. In other words, the plaint did disclose cause ofaction. ( 34 ) I further hold that, it is obvious from the pleadings and evidencethat both the parties, knew fully well, that the premises were let out forresidential purposes, and no prejudice was caused to respondent. ( 35 ) UNDER the facts and circumstances of the case, the result is thatthe plaint could not be rejected, under Order 7 Rule II Civil Procedure Code by the learnedfirst Appellate Court. The appeal is allowed. The impugned judgment is setaside case is remanded back to the First Appellate Court, for deciding the sameon merits. Parties, are however, left to bear their own costs.