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2003 DIGILAW 727 (JHR)

Rajani Kant Mishra v. Sheo Sambhu Giri

2003-06-24

VIKRAMADITYA PRASAD

body2003
JUDGMENT Vikramaditya Prasad, J. 1. This appeal has been preferred against the judgment and decree made an order in Eviction Appeal No. 2/94 by the 4th Addl. District Judge, Chaibasa, Shri Prashant Kumar, who by the said first appeal, set aside the judgment and decree of the original Court in Eviction Suit (T) No. 4/90. 2. The plaintiff appellant had filed a suit for eviction and for realization of the arrears of rent from the defendant-tenant, who was a tenant in the suit premises described in the Schedule A of the plaint with Holding No. 133 and 144 situated in Ward No. 2 of the town Chakradharpur consisting of three pucca rooms, two rooms with khaparpoah roof, one big room, lobi etc. on the grounds, inter alia, (a) default in payment of rent, (b) personal requirement of the suit premises and (c) damage of the suit premises by the defendant. On contest, the learned original Court came to decisions that (i) there was a relationship of landlord and tenant between the plaintiff and defendant (2) there was personal requirement of the suit premises to the plaintiff and (3) default in payment of rent could not be established by the plaintiff and ultimately, the original Court decreed the suit on the ground of personal requirement of the suit premises. 3. Appeals and cross-appeals were filed, which were disposed of by the impugned first appellate judgment and the appellate Court, while concurring with the finding of the original Court, on the default of rent is concerned, deferred with the finding on personal requirement and consequently, set aside the trial Courts judgment. This Second Appeal was admitted for being heard on the following substantial questions of law, with a liberty to the appellants to raise other substantial questions of law, if any, at the time of hearing :-- "(i) Whether the Court of appeal below has erred in law in reversing the finding of the trial Court on the question of personal necessity? (ii) Whether the finding on question of default can be sustained in law? 4. The second question with regard to default in payment of rent is taken up first. Both the Courts have come to a consisting finding on it. On perusal of evidences, I could find that the trial Court has based its findings on proper appreciation of evidences and rightly rejected the Ext. 4. The second question with regard to default in payment of rent is taken up first. Both the Courts have come to a consisting finding on it. On perusal of evidences, I could find that the trial Court has based its findings on proper appreciation of evidences and rightly rejected the Ext. 4 series as documents not dependenable. Appreciation of evidence as it is reasonable and has also been confirmed by the appellate Court does not require any interference by this Court in second appeal. Therefore, this substantial question, though it is not a substantial question in my opinion, is answered in negative and against the appellants. 5. Coming to the first question with regard to the personal necessity of the suit premises by the plaintiff, it is found that the appellate Court has differed with the original Court, on its own appreciation of evidence, which is mainly based on the fact that the plaintiff, while adducing evidence has traveled beyond the pleadings on this point and therefore, such evidence is not admissible and consequently, the plaintiff failed to prove the personal requirement. In the plaint, the statements made with regard to the personal requirement was as follows :-- "11. That further the plaintiffs require the tenanted premises for their own personal use and occupation. The entire suit premises are required by plaintiffs in good faith and reasonably as the Plaintiff No. 3 Jay Prakash Mishra intends to set up his business, industry in part of the same and the remaining portion is required for separate residence by Plaintiff No. 3 Jay Prakash Mishra as it is not feasible to live jointly with other brothers under one roof in view of bitterness prevailing amongst the female folk in the family. The Plaintiff No. 3 also wants to set up his industry and business separately of his own in the suit premises. The suit premises are most suitable for both the purposes and also from the point of view of its locality and situation, as the same is within Bazar Areas. The defendant is liable to be evicted under Section 11(1)(c) of B.B.R.C. Act. Plaintiffs requested the defendant on many occasions since 1986 and onward requesting him to vacate the suit premises but the defendant is avoiding to vacate on one or the other pretext." (Underlines emphasized) The defendant respondents defied the aforesaid plea in the written statement. 6. The defendant is liable to be evicted under Section 11(1)(c) of B.B.R.C. Act. Plaintiffs requested the defendant on many occasions since 1986 and onward requesting him to vacate the suit premises but the defendant is avoiding to vacate on one or the other pretext." (Underlines emphasized) The defendant respondents defied the aforesaid plea in the written statement. 6. In his evidence of plaintiff, PW 5, stated as follows:-- 23. Takari Makan Mujhe Niji Jarurath Ke Baste Bhi Khali Chaiye, Chuki Mujhe Apna Press (Byaphar) Vuha Shift Karna Hai Thatha Uskhe Ek Ansh Ko Riahat Ke Rupme Bhi. Upoyog Karna Hai. Atha Mujhe Pure Takari Makan Ki Apne Nijhi Jorurath Hai. 24. Abhi Jhaha Mera Press Hai, Vah Bazar Se Dur Hai, Aur Thikse Nehi Chal Raha Hai Jab Ki Takrari Makan Bilkul Bazar Me Esthit Hai, Thatha Byaphar Ke Liye Bohut Upayukat Hai. 25. Hamari Patni Thatha Hamari Bhailogoke Patni Ke Bich Barabar Jagra Ratha Hai Thatha Unsavoka Ek Chatke Niche Rana Asambhav Hogeya Hai Es Karanse Mai Takrari Ghar Ke Anash Me Apna Alag Karna Chata Hu. Hamari Patni Thatha Bhaiki Patnime Yah Jaghara Hamari Maa Ki Mirtyu Ke Badse Adhik Hone Laga Hai." In paragraph 76 of the cross-examination, it came that the disputed house is near the Main Road, whereas the Press of the Plaintiffs is behind the Bharat Bhawan and there is a lane leading to the Press from the Main Road and it is about 1 1/2 Kms. from the Main Road. In the cross-examination, paragraph No. 28 of the defendant-respondent No. 14, it came that the disputed house is 1 1/2 Kms. away from the residential house of the plaintiff and that is in the lane. Considering these aspects of the matter that the appellants have to shift the Press, which is in a lane in the Main Road and also considering the bittering among the wives of brothers, the original Court came to a finding that the plaintiff had a bonafide requirement of the suit premises. Considering these aspects of the matter that the appellants have to shift the Press, which is in a lane in the Main Road and also considering the bittering among the wives of brothers, the original Court came to a finding that the plaintiff had a bonafide requirement of the suit premises. The learned lower appellate Court, while deciding this issue, first found that the plaintiff had not adduced any documentary evidence (para - 14 of the judgment) and further found that the plaintiff had made departure in his evidence (in para 23 and 24 of his evidence from para 11 of the plaint); then learned lower appellate Court further held as follows :-- "Thus I find that the plaintiff have changed their stand at the time of deposing before the Court. The dictionary meaning of the word "set up" is "to establish" whereas the meaning of shift in the dictionary is "to change the place of any existing thing. Under the aforesaid circumstances, I find that the evidence laid by the plaintiffs at paragraph No. 23 and 24 of the plaint, is not based upon his pleading. It is well settled that any amount of proof offered without appropriate pleading is generally of no relevance. Reference in this connection may be made to the decisions of their Lordships of Supreme Court, reported in AIR 1981 SC 1711 and AIR 1987 Supreme Court 406." The learned appellate Court also rejected an argument of the learned Counsel for the plaintiffs that the pleadings should receive a liberal construction and no pedantic approach should be adopted to defeat justice on their splitting technicalities and rejected the decision reported in AIR 1987 SC 1242 . 7. From the statements made in the pleadings and the evidence as in paragraphs cited above, the substantial questions of law arises whether the learned lower appellate Court erred in rejecting the findings of the learned trial Court on a wrong premises that the evidence adduced were beyond the pleadings. This question necessarily requires examination of the scope of the phrase "travel beyond the pleadings." From the substance of the pleadings as contained in paragraph No. 11 of the plaint (supra), it is found that the plea had been taken of "setting an industry, business separately" in the suit premises and the evidence in paragraph 23 and 24 of PW 5 has been stated above. The question is whether this evidence was beyond the pleadings and therefore, could be rejected. 8. Order VI, CPC deals with the pleadings. Rule 2 provides that the material facts and not evidence are to be staked in the pleadings. Under Rule 4, detail is only to be given when there is a pleading of misrepresentation or fraud etc. The learned lower appellate Court, while appreciating the evidence vis-a-vis pleadings went to find the dictionary meaning of the word "set up" and this actually became the ground for differing with the finding of the learned original Court. When a word is used in a Statute, dictionary meaning has to be accepted, but we cannot lose sight of the fact that when a Statute is framed, each and every word is taken under consideration during discussion on the Statute. Therefore, if a particular word is used in a particular Statute, then obviously while interpreting/constructing that Statute, the literal, meaning has to be taken into account, unless otherwise provided. When a plaint is drafted, no such procedure is gone into and much depends upon the knowledge of English of the drafting Advocate. The scope of Rule 2, Order VI is only to find on what material facts the parties do differ, and nothing more. Therefore, it has been held by the Supreme Court, ( AIR 1977 SC 1158 ), that pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people. Court may depart from strict enforcement of the general rule of sticking to the pleadings, if it is satisfied the rigid compliance of such rule would lead to injustice in a particular case (AIR 1986 Sik. 22). Pleadings in India, especially those in the Mofussil should not be constructed very strictly and the Court must look to the essential justice of the case without considering whether matters of form have been strictly attended to ( AIR 1952 SC 179 ). It is well settled that pleadings are loosely drafted and the Court should not scrutinize pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds ( AIR 1976 SC 461 ). Here I find that the appellate Court became hypertechnical by dispensing on finding the dictionary meaning of the word "set up". It is well settled that pleadings are loosely drafted and the Court should not scrutinize pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds ( AIR 1976 SC 461 ). Here I find that the appellate Court became hypertechnical by dispensing on finding the dictionary meaning of the word "set up". Even in the evidence, the plaintiff has clearly proved that there were quarrels among the ladies in the family. It has also come in evidence that the suit premises was in a lane and he has to set up his "Business" (Bayphar) and by using the word "Press" he simply clarifies what he wanted to do. Thus, I find that there is no wild departure in his evidence from his pleadings. If evidence is slightly clarifying in nature but does not destroy the basic statements made In the plaint, it cannot be said to be inconsistent with the pleading. Therefore, I find that evidence not being contradictory or incompatible with the pleadings, it could not have been disregarded on the ground that it was inconsistent. Therefore, I find that the learned lower appellate Court erred in law while taking a view that the evidence was inconsistent with the pleadings. Thus, the appellate Courts determination of this point of personal necessity is not sustainable and consequently is set aside. 9. In the result, the appeal is allowed without costs. The appellate Courts judgment and decree is set aside and the judgment and decree of the learned original/ trial Court is restored and confirmed.