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2012 DIGILAW 1708 (JHR)

Parmanand Koiri v. Gouri Shankar Gupta

2012-12-11

P.P.BHATT

body2012
ORDER 1. The petitioner, by way of filing the present writ petition under Article 227 of the Constitution of India, has prayed for issuance of appropriate writ/order/direction for quashing the order dated 20.1.2011 (Annexure-5) passed by the learned Sub-Judge-1st, Jamtara in Title Eviction Suit No. 1 of 2010, whereby the petition filed on behalf of the petitioner-plaintiff dated 28.10.2010 was rejected. 2. The facts of the case in nutshell is that the petitioner of this case filed a suit for eviction u/s 11 r/w 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act before the Subordinate Judge, Jamtara wherein the Respondent of this case filed written statement. The petitioner, thereafter, filed a petition for rejection of the written statement of the Defendant/Respondent and after hearing the parties, the same was rejected by the court below. 3. The learned counsel for the petitioner by referring the copy of the plaint which is annexed to the petition vide Annexure-1 pointed out that the petitioner - plaintiff has filed the suit under Section 11 (1 )(c) in substance and to that extent the averments have been made in the plaint. 4. The learned counsel for the petitioner further submitted that the court below failed to consider the pleading as a whole as the pleadings clearly indicate that it was filed on the ground of personal necessity. It is further submitted that although in the plaint the averments have been made with regard to the non-payment of rent the petitioner-plaintiff has confined his claim on the ground of the personal necessity. However, the court below did not appreciate the substance of the suit. 5. It is further submitted that the judgment delivered in 1985 PLJR 490 has not been properly considered by the learned court below. 6. The learned counsel for the petitioner in support of his submissions has referred following judgments : 1. (1992)2 PLJR P. 214. 7. As against that the learned counsel for the respondent, while supporting the order passed by the court below, submitted that the learned court below has not committed any error while passing the said order and the order passed by the court below is in accordance with law. Therefore, intervention of this Court is not required under Article 227 of the Constitution of India. 8. The learned counsel for the respondent has also relied upon a decision Reyazul Haque vs. Mosst. Therefore, intervention of this Court is not required under Article 227 of the Constitution of India. 8. The learned counsel for the respondent has also relied upon a decision Reyazul Haque vs. Mosst. Maimun Khatoon and Anr., reported in 1985 PLJR page 490 in support of his submission and submitted that the pleadings and more particular cause title clearly suggests that the suit is filed under Section 11 of the Act and, therefore, it cannot be tried as summary case. 9. Considering the aforesaid rival submissions and on perusal of the impugned order and other materials on records, it transpires that the court below has rejected the application filed by the present plaintiff by observing that the suit was filed under Section 11 on the ground of personal necessity and also on the ground of non-payment of rent. The copy of the plaint which is annexed to the petition is required to be considered which clearly suggests that averments have been made by the plaintiff mainly on the ground of personal necessity. It also appears from the pleadings and relief portion of the plaint that the plaintiff/petitioner has not prayed for eviction on the basis of non-payment of rent rather he prayed for eviction of the Defendant/Respondent on the ground of personal necessity. The court is required to see the substance of the pleadings. 10. Of course, in the cause title the specific provision has not been properly mentioned. However, the plaint as a whole required to be seen, which clearly indicates that the suit is filed under Section 11(1)(c). 11. I have perused the judgments referred by the learned counsel for the petitioner. 12. In the case of 1992(2) PLJR 214 it appears that paragraphs 12 & 13 of the said judgment is relevant for the purpose of the deciding this case and therefore the same is reproduced hereinbelow:- "12. Pleading is not a statute nor its object is to punish the parties for the defective pleading. Its object is to intimate the parties about the cases of each other to enable the court to determine as to what is really an issue between the parties and to narrow down the controversy between the parties. It is well settled that the pleading is to be construed liberally and the court should see the substance and not the form of the pleading. It is well settled that the pleading is to be construed liberally and the court should see the substance and not the form of the pleading. In the case of Kedar Lal Seal and Ors. vs. Hari Lal Seal ( AIR 1952 SC 47 ) the Supreme Court has observed as follows:- The court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs. 13. As the object of the pleading is to inform the parties to know the case of each other, a party is generally not allowed to travel beyond the pleading. Lord Viscount Dunedih of the Judicial Committee in the case of Sadique Mohammad Sah vs. Mt. Saran (1930 Privy Council 57) had observed that no amount of evidence can be looked into upon a plea which was never put forward. This rule was considered by the Supreme Court in the case of Nagubai Ammal and Others vs. B. Shama Rao and Ors. ( AIR 1956 SC 593 ) and it was held as follows:- "The true scope of this rule is that evidence led in on issue on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. The rule applicable to this class of cases is that laid down in Rani Chandra Kunwar vs. Narpat Singh, 34 Ind. App. 27(B), There, the defendants put forward at the time of a trial a contention that the plaintiff had been given away in adoption, and was in consequence not entitled to inherit. The rule applicable to this class of cases is that laid down in Rani Chandra Kunwar vs. Narpat Singh, 34 Ind. App. 27(B), There, the defendants put forward at the time of a trial a contention that the plaintiff had been given away in adoption, and was in consequence not entitled to inherit. No such plea was taken in the written statement; nor was any issue framed thereon. Before the Privy Council, the contention was raised on behalf of the plaintiff that in view of the pleadings, the question of adoption was not open to the defendants. It was held by Lord Atkinson overruling this objection that as both the parties had gone to trial on the question of adoption, and as the plaintiff had not been taken by surprise, the plea as to adoption was open to the defendants, and indeed, the defendants succeeded on that very issue. This objection must accordingly be overruled". The view taken in the aforesaid case has been reiterated by the Supreme Court in the case of Bhagwati Prasad vs. Chandramauli (A.I.R. 1966 S.C. 735), in the following words:- ".......If a plea is not specifically made and yet it is covered by an issue by 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 would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is; did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. " Recently, this question was again considered by the Supreme Court in the case of Ram Sarup Gupta vs. Bishun Narain Inter College ( AIR 1987 SC 1242 ) and their Lordships held as follows:- ".......It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and .purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a legal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on forms, instead the substance of the pleadings should be considered. Whenever the question about lack of pleadings is raised the enquiry should not be so much about the form of the pleadings instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Whenever the question about lack of pleadings is raised the enquiry should not be so much about the form of the pleadings instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal. (Emphasis added) Thus, from the aforesaid decision, the following propositions of law emerge. Generally the parties should not be allowed to travel beyond their pleadings. However pleadings should be construed liberally and the Court should not adopt a pedantic approach. If the substance of the essential material facts for grant of reltef is stated in the pleading the Court should not throwaway the same on the ground of defective form or the deficiency in the pleading. Even if the plea is not raised in the pleading even then a claim of the party cannot be defeated, if the parties knew the respective cases of each other on the said plea and led evidence in support of their cases." 13. On perusal of the judgment in the case of Ram Sarup Gupta (dead) by L.Rs. vs. Bishun Narain Inter College reported in (1987)2 SCC 555 it appears that Para-6 of the said judgment is relevant for the purpose of deciding this case and therefore, the same is reproduced hereinbelow:- "The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law ill such a case it is the duty of the court to ascertain the substance of the pleading as to determine the question." 14. I have also perused the judgment referred to and relied upon by the learned counsel for the Respondent, Reyazul Haque vs. Mosst. Maimun Khatoon & Ors. reported in 1985 PLJR 490, in which the landlord contested the case on the ground that the adjudication of the ground for eviction not covered by clauses (c) and (e) of sub-section (1) of Sec. 14 would be governed by the ordinary procedure. Maimun Khatoon & Ors. reported in 1985 PLJR 490, in which the landlord contested the case on the ground that the adjudication of the ground for eviction not covered by clauses (c) and (e) of sub-section (1) of Sec. 14 would be governed by the ordinary procedure. Learned Single Bench of Patna High Court held in this case the ground of bona fide personal necessity as well as the ground of the tenant holding over after expiry of the lease which is for a specified period may be combined in a suit for (sic-eviction alongwith the other grounds) contained in sub-section (1) of Sec. 11 of the Act. However, to such a suit the provisions of Section 14 of the Act would not apply and the same shall have to be disposed of in accordance with the ordinary procedure prescribed by the Code of Civil Procedure". 15. The fact of the case in hand is different to the case cited by the Respondent because in the case in hand the landlord himself admitted that he has filed the case only on the ground of personal necessity whereas in the case cited by the Respondent the ground of the landlord was that if the adjudication was not covered by clauses (c) and (e) of sub-section (i) of Sec. 14 then the suit will be governed by the ordinary procedure. For the reason given above, the principle laid down in Reyazul Haque (supra) will not apply in the present case. 16. The submissions made by the learned counsel for the respondent cannot be accepted in view of the aforesaid fact and circumstance of the present case and more particularly in view of the ratio laid down by the. Hon'ble Apex Court in Ram Sarup Gupta (dead) by L.Rs. vs. Bishun Narain Inter College (supra). 17. In view of the facts and circumstances the impugned order dated 20.12.2011 (Annexure-5) passed by learned Sub-Judge-1st, Jamtara in Title Eviction Suit No.1 of 2010 is hereby set aside. 18. However, defendant is at liberty to file affidavit for leave of the Court as provided in Section 14 of the Act and the court shall deal with the case in a summary manner as stipulated under Section 14 of the Act. In the meantime, the written statement of the defendant will be kept on record till the leave application is allowed. 19. In the meantime, the written statement of the defendant will be kept on record till the leave application is allowed. 19. This writ petition is disposed of with aforesaid observations.