Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 974 (ALL)

RAM AVTAR GOEL v. JAGANNATH GUPTA

2001-10-19

JANARDAN SAHAI

body2001
JANARDAN SAHAI, J. ( 1 ) THIS is a revision by the tenant defendant in a suit for ejectment and arrears of rent filed by the landlords plaintiff-respondent Nos. 1 and 2 on the ground of denial of title and default attracting the liability for eviction under Section 20 (2) (f) and (g) of U. P. Urban Buildings (Regulation of letting. Rent and Eviction) Act (U. P. Act 13 of 1972), hereinafter called the Act. The suit was originally decreed on 23. 4. 1986. The tenants revision against the decree was dismissed by this court on 7. 7. 1997 holding that it was not necessary to deal elaborately the question of denial of title as the finding on default was being affirmed. This Indeed was a misconception as the decree of the trial court was not based on default. The case went up to the Supreme Court, which after setting aside the order of this Court, remanded the case to It on the short ground that the real issue between the parties regarding denial of title was left undecided. This Court by its Judgment and order dated 29. 1. 1998 remanded the case to the trial court to record a finding whether in the absence of specific pleading the landlord had neither waived his right of re-entry nor condoned the conduct of the tenant as required under Section 20 (2) (f) of the Act, the suit could be entertained and If so, whether there had been in fact such a waiver or condonation so as to disentitle the plaintiff from an order in his favour even on the basis of denial of title. On remand, the Judge, small cause court decreed the suit and held that the pleadings in the present case were sufficient to fulfil the requirement of Section 20 (2) (f) of the Act and that it was proved that the landlord had not waived his right of re-entry nor condoned the conduct of the tenant. ( 2 ) I have heard Shri Z. M. Naiyer, learned counsel for the applicant and Shri Manish Goyal, learned counsel for the opposite party landlord. ( 3 ) SECTION 20 (2) (f) of the Act provides that a suit for eviction of a tenant from a building after determination of his tenancy may be instituted on one or more of the following grounds namely. . . . . . ( 3 ) SECTION 20 (2) (f) of the Act provides that a suit for eviction of a tenant from a building after determination of his tenancy may be instituted on one or more of the following grounds namely. . . . . . (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. " ( 4 ) IT is to be seen as to what would be the material facts, which would constitute the cause of action in a suit for eviction under Section 20 (2) (f) of the Act. First - as provided in Section 20 (2) of the Act. It is the determination of tenancy. Second -that the tenant has renounced his character as such or denied the title of the landlord ; and third - that the landlord has not waived his right of re-entry or condoned the conduct of the tenant. If the aforesaid three facts are pleaded and proved, a landlord is entitled to a decree for eviction under Section 20 (2) (f) of the Act. Section 106 of the Transfer of Property Act provides that a landlord may determine the tenancy by a notice to quit. ( 5 ) IN the present suit, the grounds under Section 20 (2) (f) of the Act have been set out in paragraph Nos. 7, 8 and 9 of the plaint. In paragraph 7 of the plaint. It is stated that two notices dated 8. 12. 1983 were sent by registered post on 10. 12. 1983 at the residential and office addresses of the defendant and the defendants tenancy was terminated with effect from 30 days from the date of service of notice. Iin paragraph 8 of the plaint, it is averred that the defendant had deliberately denied the plaintiffs title on Incorrect allegations and had filed Suit No. 479 of 1983. Ram Autar Goel v. Jagannath and Anr. , that in the plaint of the said suit and also as a witness in the case, the defendant deliberately denied the plaintiffs title to be the landlords and renounced his character as tenant. Ram Autar Goel v. Jagannath and Anr. , that in the plaint of the said suit and also as a witness in the case, the defendant deliberately denied the plaintiffs title to be the landlords and renounced his character as tenant. Iin paragraph 9, it has been stated that despite service of notice, the defendant failed to vacate the accommodation and the plaintiffs have become entitled to file the suit for eviction under Section 20 (2) (f) of the Act and the bar imposed under Section 20 (1) of the Act stands removed. The trial court has observed and its observation is borne out from the certified copy of the notice produced here that in paragraph 6 of the notice sent by the landlord, it has been stated that the defendant had renounced his character as tenant and had denied the landlords title and that the landlord had not waived his right nor condoned the conduct of the tenant. Notice was filed along with the plaint. The trial court reading the averments made in the notice together with the averments made in paragraphs 8 and 9 of the plaint, held that the pleadings conform to the requirement of Section 20 (2) (f) of the Act. One of the material questions in the case would be as to what extent the averments in the notice can be read as a part of the pleadings. ( 6 ) SHRI Z. M. Naiyer contends that the judgment of trial court is not in accordance with law, inasmuch as the pleadings did not specifically contain the recital that the landlord has not waived his right of re-entry or condoned the conduct of the tenant, which is the second requirement of section 20 (2) (f) of the Act. He relies upon the following decisions : 1. Mohd. Arif v. IV A. D. J. , Aligarh, 1984 (2) ARC 225 ; 2. Pradeep Gautam v. VIIIth A. D. J. , 1993 (1) ARC 44 ; 3. Mohd. Alim v. Mohd. Abrar, 1989 LCD 268; 4. V. K. Gupta v. Second A. D. J. , Kanpur, 1999 (4) AWC 2752 ; 5. Har Swamp Nigam v. A. D. J. , Allahabad, 1999 (2) ARC 224 ; 6. Shyam Sunder v. IXth A. D. J. , Allahabad, 2000 (1) ARC 165. ( 7 ) IN Mohd. Mohd. Alim v. Mohd. Abrar, 1989 LCD 268; 4. V. K. Gupta v. Second A. D. J. , Kanpur, 1999 (4) AWC 2752 ; 5. Har Swamp Nigam v. A. D. J. , Allahabad, 1999 (2) ARC 224 ; 6. Shyam Sunder v. IXth A. D. J. , Allahabad, 2000 (1) ARC 165. ( 7 ) IN Mohd. Arif v. IVth Additional District Judge, Aligarh (supra), there was no averment in the plaint regarding absence of waiver by the landlord of his right of re-entry and absence of condonation of the tenants conduct which shall be referred to as the second requirement of clause (f) of Section 20 (2) of the Act. The ground for eviction was that in para 8 of the written statement of that suit, the tenant had denied the title of the landlord. There are two distinct features in this case, which distinguish it from the present one. Firstly in that suit, the denial of title had been made in the written statement and as such, there was no occasion of making any recital about the requirements of Clause (f) in the notice determining tenancy. The plea of ejectment on the ground of dental was brought by amendment of the plaint. Secondly, there was no mention that the suit was being brought on grounds under Section 20 (2) (f) of the Act. ( 8 ) IN Pradeep Gautam v. VIIIth Additional District Judge (supra), also the denial of title was made by the tenant in the written statement and as such plea under Section 20 (2) (f) was introduced in the replication filed by the plaintiff. The High Court remanded the case to the trial court to frame additional issues and record finding with regard to the landlord not having waived his right of re-entry and not having condoned the conduct of the tenant. There was no fault found in the pleadings and the suit was remanded to obtain a finding on the factum of condonation. ( 9 ) IN Mohd. Alim v. Mohd. Abrar (supra) too the denial of title was contained in the written statement. No amendment was made in the plaint invoking the ground in Section 20 (2) (f) of the act. It was held by this Court that in the absence of pleadings attracting the provisions of Clause (f), the defendant had no opportunity to show that Clause (f) was not attracted. No amendment was made in the plaint invoking the ground in Section 20 (2) (f) of the act. It was held by this Court that in the absence of pleadings attracting the provisions of Clause (f), the defendant had no opportunity to show that Clause (f) was not attracted. Moreover, the defendant was held liable to eviction under Clause (f) on the mere finding that he denied the title of the plaintiff without any finding that there was no waiver of right or condonation of conduct. It was held by this Court that this finding did not fulfil the second requirement of Section 20 (2) (f) of the Act. There was also a complete absence of pleading of denial of title and of absence of waiver and condonation. ( 10 ) IN V. K. Gupta v. Second Additional District Judge, Kanpur (supra) too, the alleged denial of title was made in the written statement. The suit was dismissed. It was held that neither in the original plaint nor by amendment after filing of written statement, the plea on the ground mentioned in Sub-clause (f) of Section 20 (2) of the Act was taken. It was also held that on the pleadings in the written statement it could not be held that the tenant has renounced his character as lessee. The Court held that merely because it was averred in the written statement that the suit was bad for non-joinder of necessary party, it could not be concluded that the tenant renounced his character as tenant or denied the title of the landlady. This case too does not apply as there was no pleading at all of the Ingredients of Section 20 (2) (f) of the Act and also as the factum of denial could not be Inferred from the tenants averment. ( 11 ) IN Har Swamp Nigam v. Additional District Judge, Allahabad (supra), was a case in which plea of denial of title was found to be established. The case is distinguishable as the question of sufficiency of pleading of the second requirement of Section 20 (2) (f) was not involved as there was no pleading at all, not even a half hearted attempt to plead this requirement. The case is distinguishable as the question of sufficiency of pleading of the second requirement of Section 20 (2) (f) was not involved as there was no pleading at all, not even a half hearted attempt to plead this requirement. ( 12 ) IN Shyam Sunder v. IXth Additional District Judge, Allahabad, (supra), it was held that neither the tenant has renounced his character as tenant nor had denied the title of the original landlady. In that case, the Court was not called upon to consider the frame of the pleadings under section 20 (2) (f) of the Act. ( 13 ) A notice determining tenancy is a necessary part of the cause of action for instituting a suit on the ground mentioned in Section 20 (2) (f ). In the absence of such a notice, the suit must fall. Section 20 (1) contains statutory precondition of determination of the tenancy for instituting a suit on any of the grounds mentioned in Section 20 (2 ). Order VII, Rule 14. C. P. C. provides : "14. Production of document on which plaintiff sues.-- (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (2) List of other documents. Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. " ( 14 ) THE notice was filed along with the plaint. The notice has been relied upon in the plaint as the document by which the tenancy has been determined on the ground of denial of title. It is thus a basis of the suit and must be treated to be a part of the pleadings. In Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604 , notice Indicating readiness and willingness of the party to perform his part in a suit for specific performance of contract relied upon in the plaint was treated as part of the plaint. ( 15 ) THE purpose of pleadings is to make the other party conscious of the case against it. In the notice, which was referred to in paragraph Nos. ( 15 ) THE purpose of pleadings is to make the other party conscious of the case against it. In the notice, which was referred to in paragraph Nos. 7 and 8 in the plaint, the landlord had averred that he has not waived his right nor condoned the conduct of the tenant denying the landlords title. It has been further specifically stated in the plaint that the grounds under Section 20 (2) (f)of the Act was being Invoked and as such, bar under Section 20 of the Act was not applicable. It was also specifically stated that the tenant had denied the landlords title in the previous suit referred to and had renounced his character as tenant. These averments were sufficient to apprise the tenant-defendant of the case against him. ( 16 ) IT is well-settled where the parties go to trial conscious of the case and the Issue involved, the suit cannot be dismissed for want of proper pleadings. In Majati Subbarao v. P. V. K. Krishna Rao (deceased) by L. Rs. , AIR 1989 SC 2187 , suit for ejectment of a tenant was decreed on the ground of denial of title even though there was no pleading of denial of title. However, as an issue had been framed upon the point by the Rent Controller and the parties went to trial having knowledge of the ground, the Apex Court dismissed the appeal of the tenant. Plea of denial of title has been taken in the plaint and it has also been pleaded that grounds under Section 20 (2) (f)of the Act were being invoked. It has been held in Rom Samp Gupta (dead by L. Rs.) v. Bishun naraln Inter College and others, AIR 1987 SC 1242 and Udhab Singh Maddav Rao, AIR 1976 sc 744 , that it is the substance of the pleading and not its form that is material and the pleading as a whole has to be construed to find out the intention of the party. ( 17 ) FROM the plaint averments and the averments in the notice which must be treated to be part of the pleadings, the second requirement of Section 20 (2) (f) of the Act has been sufficiently pleaded and it is not necessary to consider the decision Ghulam Hussan Kutubuddin Hasea v. Abdul Rashid, AIR 2001 SC 19, relied upon by Shri Naiyer for the proposition that no evidence can be considered if a plea has not been raised. ( 18 ) THAT brings me to the second submission of Shri Naiyer that the finding of the trial court that the landlord had neither waived his right nor condoned the conduct of the tenant is not in accordance with law. The landlord had withdrawn the rent deposited under Section 20 (6) of the act and had thus, it is urged, waived his right of eviction. Before dealing with this contention further the question of burden of proof has to be considered. Where a party which has incurred a liability pleads exoneration therefrom on account of some conduct of the party entitled to enforce the liability, the burden of proof of such conduct would generally lie upon the party claiming exoneration especially if the conduct of other party is a positive one. The trial court has held on the question of waiver that neither of the parties has adduced any evidence and as such, it has proceeded to decide the matter on the basis of circumstances. The first circumstance relied upon by the trial court is that the suit itself has been filed on the ground of denial of title under Section 20 (2) (f) of the Act. ( 19 ) IN A. S. Raj v. District Judge. Lucknow and Ors. , 1982 (2) ARC 515, it was held that waiver is a conscious Act. The mere acceptance of rent after the institution of the suit was held not to constitute waiver. If the landlord was bona fide pursuing his remedy, no waiver could be incurred. In Mool Chand and Ors. v. Brijmani Devi and Ors. , AIR 1955 All 680, the question arose as to whether claim for rent in the notice terminating tenancy as well as the use of that expression in the plaint would constitute waiver of forfeiture. If the landlord was bona fide pursuing his remedy, no waiver could be incurred. In Mool Chand and Ors. v. Brijmani Devi and Ors. , AIR 1955 All 680, the question arose as to whether claim for rent in the notice terminating tenancy as well as the use of that expression in the plaint would constitute waiver of forfeiture. The Division Bench, while negativing the contention, held that by mere use of the expression rent, the landlord would not be deemed to have waived the forfeiture. The service of notice terminating tenancy and subsequently filing a suit were evidence of clear intention not to waive the right already acquired. ( 20 ) IN Halsburys Law of England 4th Edition Vol. 27, the question of waiver of forfeiture has been dealt with as follows : "429. Waiver of forfeiture.--The landlord has the option whether to take advantage of a forfeiture or not and if he elects not to do so, the forfeiture is waived. Such election may be either express or implied, and it is implied when, after the cause of forfeiture has come to his knowledge, the landlord does any act whereby he recognises the relationship of landlord and tenant as still continuing. The onus of proof that the landlord knew of the cause of forfeiture is on the tenant, and does not shift to the landlord on proof that the landlord has recognised the tenancy after the ground of forfeiture has arisen. However, if it is shown that, with knowledge of the cause of forfeiture, the landlord has recognised the tenancy, he will be precluded from saying that he did not do the act with the intention of waiving the forfeiture. A landlord does not waive the forfeiture by merely standing by and seeing it incurred, where, for instance, the tenant makes alterations in breach of covenant and the landlord does not interfere ; there must be some positive act of waiver. There is principle in the rules governing waiver of the right to forfeiture whether the breach is a failure to pay the rent or some other breach of covenant. " ( 21 ) CONDUCT of waiver and condonation attributed to the other party is to be proved by the party alleging it, in N. G. Dastane v. S. Dastane, AIR 1975 SC 1534 , which was a case under Section 23 of the Hindu Marriage Act. " ( 21 ) CONDUCT of waiver and condonation attributed to the other party is to be proved by the party alleging it, in N. G. Dastane v. S. Dastane, AIR 1975 SC 1534 , which was a case under Section 23 of the Hindu Marriage Act. It was held that the evidence of condonation of marital offence had to be led by the party alleging and in the absence of such pleading or evidence, condonation could not be said to have been proved. In State of Bihar and Anr. v. Saubhagya Sundari Devi and ors. , AIR 1972 Pat 200 , it was held that burden of waiver of denial of title lay upon the defendant. ( 22 ) THE trial court has considered the circumstances for corning to the conclusion that waiver had not been proved. The landlord had effectively contested the suit in which the tenant had denied his title. It was followed by a notice terminating the tenancy on the ground of denial of title in which there was specific averment that the landlord had not condoned the conduct of the tenant nor waived his right. The notice was followed by a suit for eviction viz. , the present suit in which the landlord based his case on the existence of the ground in Section 20 (2) (f) of the Act apart from the ground of default. These acts are positive acts, which negatived any Intention to waive. Good grounds have been given by the trial court in support of its finding. ( 23 ) THE trial court has relied upon the decision in Zamir Ahmad v. Shajahan Begum, 1988 (1)ARC 507, wherein it has been held that in the absence of evidence regarding condonation or waiver. It should be held that there was no condonation. The trial court has also relied upon the decision in Narain Das Khanna v. Jawahar Lal Bhatia, 1982 ALJ 1441, in which it has been held that in case the tenant has denied the title of the landlord, decree for eviction can be passed against him. From para 10 of the judgment of this case, it is clear that no evidence had been given upon the point of condonation and the suit was decreed on the ground of denial of title. From para 10 of the judgment of this case, it is clear that no evidence had been given upon the point of condonation and the suit was decreed on the ground of denial of title. Shri Naiyer submitted that in the remand order passed by this Court, it had been held that the decision in the case of Narain Das Khanna v. Jawahar Lal Bhatia (supra) has no application and that the trial court has gone against the remand order by placing reliance upon the decision in narain Das. What has been held in the remand order by this Court while considering the case of narain Das Khanna (supra), is that in that decision, there was not only dental of title but such denial also resulted in the renouncement of the character of the tenant whereas the question in the present case was not the factum of denial but whether the pleading was a proper one in terms of the requirement of the Section. The contention of Shri Naiyer that the decision of Narain Das, would have no application is not sound. ( 24 ) THE trial court after considering the circumstances on the record has given finding that It was not proved that the landlord had waived his right of re-entry or condoned the conduct of the tenant. The finding on the question of waiver is a finding of fact as held in Zamir Ahmad v. Shajahan Begum (supra ). There is no error in the order of the trial court which may require interference. ( 25 ) IN view of the aforesaid discussion, there is no force in this revision and is accordingly dismissed. .