J. D. Jain, J.
(1) Both these appeals arise out of judgment dated 17th December 1984 of Rent Control Tribunal directing eviction of the appellant-tenant on the grounds under Clauses (a) and (e) of the proviso to Section 14 of the Delhi Rent Control Act (hereinafter referred to as "the Act").
(2) The facts giving rise to these appeals in brief are that late Lt. Ge.n. T. R. Pahwa (Retd.) was the owner of property bearing No. D-318, defense Colony, New Delhi. He let out the same to the appellant-S. K. Gambhir by a registered lease- deed dated 1st July 1973 for a period of three years with effect from 10th July 1974. The agreed rate of rent was Rs. 1,000 per month. However, a sum of Rs. 280 per month was to be deducted there from by the tenant out of the amount of Rs. 10,000 which had been given by the lessee as advance for electing structural changes in the demised premises It was agreed that the said amount would be adjusted over a period of three years by monthly deductions of Rs. 280. In August 1977 the deceased-landlord filed an eviction petition against the appellant on grounds of (a) non-payment of rent despites due service of notice of demand; (b) bona fide requirement of premises for use as residence by the landlord and dependant members of his family; and (c) damaging the demised premises falling under Clauses (a), (e) & (j) respectively of the proviso to Section 14(1) of the Act. However, the landlord died during the pendency of the eviction petition and his legal representatives, namely, Mrs. Romila Singh, daughter and the only child of the deceased landlord and Amar Pratap Singh and Virendra Pratap Singh sons of Mrs. Romila Singh, to whom the. property in question had been bequeathed by the deceased landlord under a will, were permitted to be brought on record. The Additional Rent Controller found that the appellant bad fallen into arrears of rent and he did not pay the same despite due service of a valid notice of demand dated 8th May 1977. He further found that despite an order having been made under Section 15(1) of the Act requiring the appellant to pay/deposit the arrears of rent due uptil date within a month and also to continue paying depositing the future rent month by month by 15th of each succeeding month, the appellant defaulted in paying/ depositing rent for certain months. He did not find any justification for condoning the delay/omission to deposit lent for certain months on the part of the appellant. So, he passed an order of eviction on 19th February 1984 against the appellant under Clause (a) of the proviso to Section 14(1). However. he dismissed the eviction petition on the grounds of bona fide requirement and damage caused to the demised premises.
(3) Aggrieved by the said order, both the parties preferred separate appeals, the landlord against the dismissal of the eviction petition under Clauses (e) & (j) and the tenant against order of eviction under Clause (a); to the Runt Control Tribunal. The learned Rent Control Tribunal had vide impugned order affirmed the order of eviction passed by the Additional Rent Controller on the ground of non-payment of rent but has reversed the finding and decision of the Additional Rent Controller on the ground of bona fide requirement falling under Clause (e). Thus, he has allowed the eviction petition on both the said grounds. While observing that the appellant was entitled to six months time to vacate the premises in dispute as provided in Clause (e) of the proviso to sub-section (1) of Section 14, he directed that the appellant would be liable to be evicted on the expiry of one month from the date of the- order in case he did not surrender vacant possession of the demised premises on ground covered by Clause (a) of the proviso.
(4) FACER; with this situation the appellant first filed S.A.O. No. 37185 challenging the correctness, legally and validity of the order of eviction made under Clause (a) of the proviso. Later on, he filed S.A.O. No. 84/85 challenging the correctness, legality and validity of the impugned order made under Clause (e) of the proviso and prayed that the order passed by the Additional Rent Controller on 19th July 1984 dismissing the eviction petition on the said ground by confirmed. Since these appeals involve common questions of law and fact, this judgment of mine shall dispose of both of them.
(5) The controversy in S.A.O. No. 3785 iie in a narrow compass. It revolves round the only question whether the appellant was entitled to deduct Rs. 1,087/50P every year on account of annual repairs to and maintenance of the premises in question. The facts germane to the decision of this controversy are as under.
(6) Clause 14 of the lease-deed contains the following stipulation :
"THAT the lessee will carry out annual repairs and maintenance at his own expenses for which the Lesser shall pay a sum of Rs. 1,087/50P annually."
(7) As stated above, the Additional Rent; Controller passed an order under Section 15(1) of the Act on 16th October 1978 requiring the appellant to deposit the arrears of rent for the period 1st March 1977 to 9th July 1977 at the rate of Rs. 720 per month i.e. after deducting a sum of Rs. 280 per month towards adjustment of the amount of Rs. 10,000 paid in advance and to pay up-to-date rent at Rs. 1,000 per month with effect from 10th July 1977 within one month from the date of the order. The appellant was also directed to continue to pay or deposit month by month by 15th of each succeeding month future rent. However, he was allowed to deduct a sum of Rs. l,087l50P allegedly spent on repairs during the year 1977 Feeling dis-satisfied the appellant went in appeal against the said order. One of the rounds of appeal (I need not refer to the other grounds as the same have not been urged by the learned counsel for the appellant in this appeal and those are no longer relevant to the decision of the same.) was that he was entitled to adjust Rs. 1,087/50P every year for carrying out annual repairs out of the rent payable to the landlord. The learned Rent Control Tribunal allows this prayer and modified the order of the Additional Rent Controller to the extent that the appellant would be entitled to adjust Rs. 1,087/50P more as the amount spent on annual repairs or the year 1978. However, the appellant went on deducting said amount of Rs. 1,087/50P every year from the rent on account of annual repairs even. subsequent to the years 1977 and 1978. Thus, the deposit made by him fell short by Rs. 1,087/50P every year for more than four years by the time the matter came up for hearing by the Rent Control Tribunal. The rent for some months was deposited even late. However, the learned Rent Control Tribunal has condoned the delay in respect of such deposits in view of a recent judgment of the Supreme Court in. Flam Murti v. Bhola Nath & Another, . As for deduction of Rs. 1,087/50P per year he has given a finding that the same was not warranted either by the relevant stipulation contained in the lease-deed or by the order made by the Additional Rent Controller under Section 15(1) of the Act as modified by the Tribunal. He has held that the deduction on account of annual repairs and maintenance could be admissible only if the appellant had actually carried out the same. Further the appellant was not competent to deduct the said amount at his sweet will for the period subsequent to the year 1978 when deduction on that account had been specifically allowed for years 1977 and 1978 only. So, he has held that the appellant was not entitled to the benefit of the provisions contained in Section 14(2) of the Act.
(8) The learned counsel for the appellant has made two fold submission. In the first instance, he has urged that on the true construction of clause 14 of the lease-deed the appellant was entitled as of right to adjust the amount of Rs. 1,0871 50P per annum on account of repairs. Secondly he has urged that even if this argument is found to be untenable, the omission on the part of the appellant in depositing the said amount every year stemmed from a bona fide although mistaken interpretation of the aforesaid stipulation as he always thought that he was entitled to deduct an amount of Rs. 1,087/50P per year on account of annual repairs and up keep of the demised premises. So, omission on his part to deposit the said amount every year reserves condensation and he is absolutely prepared to pay the same as and when called upon,
(9) The first submission calls for a proper construction of the stipulation. Under Section 44 of the Act every landlord is bound to keep the premises in good and tenantable repairs. In other words, the responsibility for keeping the demised premises in good and tenantable repairs rests on the shoulders of the landlord. Obviously it was with a view to relieve the landlord of this responsibility that the stipulation embodied in clause 14 of the lease-deed was designed and the responsibility for carrying out annual repairs and maintenance of the premises was cast on the tenant. Moreover, the stipulation was aimed at relieving the tenant from the cumbersome procedure envisaged in Section 44(2) of the Act of giving a notice in writing etc. in case the landlord neglected or failed to make any repairs which he was bound to make under sub-section (1) of the said Section. So, the parries devised a simple method of entrusting the task of carrying out repairs and maintenance to the tenant on the condition that he would be reimbursed for the same at the rate of Rs. 1,087/50P annually. It may be noticed that the said amount is not just equivalent of rent for one month. Indeed, as stipulated by the parties a sum of Rs. 280 per month was to be deducted by the tenant for adjustment against the advance of Rs. 10,000. So, the said figure of Rs. 1,087/50P was worked out on some basis other than the requirement of law i.e. Section 44 of the Act. Under the circumstances, the learned Additional Rent Controller slipped into a grave error in importing the principle and the procedure envisaged in Section 44. It bears repetition that the very purpose of clause 14 was to get rid of the provisions contained in Section 44 of the Act rather than not. It is antithetical to Section 44.
(10) The crucial question, however, which still remains to be considered is whether the stipulation in clause 14 entitled the tenant to deduct an amount of Rs. 1,087/50P per annum as of right. I do not think that such a wide interpretation can be placed on the language of the said clause which is quite plain and explicit. It simply postulates that the lessee will carry out annual repairs and maintenance at his own expense and the Lesser shall pay a sum of Rs. 1,087/50P annually for the same. Thus. the carrying out of annual repairs and maintenance by the tenant is a condition precedent for the payment of the aforesaid amount by the landlord to him. In other words, the landlord is required to reimburse the tenant only if he carries out annual repairs and maintenance and this conclusion is manifest from the words "for which the landlord shall pay" occurring in the said clause. It may be noticed that this stipulation does not envisage adjustment of the amount of Rs. 1,087/50P out of the rent payable by the lessee to the landlord, rather it imposes a positive duty on the landlord to pay the tenant for such annual repairs and maintenance which may be carried out by the tenant. It is the duty of the Court to discover what the real intention of the parties was and in doing so the Court shall first look at the plain language of the contract and it is only if any ambiguity or obscurity is discernible that the Court will embark upon further inquiry, for instance. ascertain other surrounding and attendant circumstances. It may have to take into account the other clauses of the document in order to find out the real intention of the parties. As Lord Esher, M.R., said in Madell v. Thomas & Co., (1891)1 Q.B. 234(2):
".......THEcourt is to look through or behind the documents, and to get at the reality; and, if in reality the documents are only given as a security for money, then they are bills of sale."
(11) The plain language of the stipulation clearly indicates that the payment of Rs. 1,087/50P annually by the landlord is to be in consideration of the tenant carrying out annual repain; and maintenance and not as a matter of concession or goodwill. As said by Lord Herschell L.C. in Alexander Enox McIntyre and John Arthur Maconchy v. Crossley Brothers. Limited, (1895) Ac 457(3) :
"HERE the parties have in terms expressed their intention. and said that the property shall not pass till the full purchase money is paid. I know of no reason to prevent that being a perfectly lawful agreement. If that was really The intention of the narties. T know of no rule or principle of law which prevents its being given effect to."
(12) SO. both the courts below have taken the right view that the appellant could not deduct or adjust an amount of Rs. 1087/50P annually as of right without seeking permission from the Controller to that effect while the eviction petition was still pending and he was obligatory upon the, tenant to scrupulously comply with the order made under Section 15(1) of the Act.
(13) If the above construction of clause 14 of the lease deed is taken to be correct, it was obligatory upon the tenant-appellant to contend at the appropriate stage of the proceedings that he was entitled to adjust the amount of Rs. 1087/50P on account of his carrying out annual repairs/maintenance to the demised premises. However, I have looked in vain for such a pleading to be found at any stage of the proceedings. Significantly he laid claim to reimbursement of Rs. 39,000 on account of expenditure incurred by him in carrying out structural alterations and improvements. His contention was that even though he had spent a huge amount of Rs. 39,000 on making structural changes and alterations with the consent of the landlord the latter agreed to pay/adjust a sum of Rs. 7,000 only towards the same. This contention was refuted by the landlord who took the stand that Rs. 7,000 were allowed to be adjusted in full and final claim of the tenant for the said amount of Rs. 39,000. Both the courts below have upheld the plea raised by the landlord in this respect and the appellant has not re-agitated this question in this Court. However, I have alluded to this part of the controversy between the parties because on a perusal of the order dated 16th October, 1978 of the Additional Rent Controller under Section 15(1) of the Act I notice that the direction for adjustment of Rs. 1,087/50P was made by the Additional Rent Conroller, inter alia, taking into consideration this claim. Since the order was made without prejudice to the respective contentions of the parties it would appear that the Additional Rent Controller allowed this adjustment on the assumption that the tenant would have discharged his responsibility of carrying out repairs and maintenance of the property. Even the appellate order dated 1st May, 1979 of the Tribunal simply states:
"THE appellant has been found to be entitled to adjust Rs. 1087/50P every year for carrying out annual repairs. In respect of the year 1977 the Additional Controller has allowed the adjustment and while-admitting the appeal I had modified the impugned order allowing the appellant to adjust Rs. 1087/50P more as the amount spent for annual for the year 1978."
(14) Hence, the learned Tribunal modified the order of the Additional Rent Controller to the extent that he was allowed adjustment of Rs. 1087/50P for the year 1978 also. Obviously this order too was made on the hypothesis that the appellant had incurred some expenditure on the annual repairs maintenance of the demised premises. Of course, there is nothing to suggest that any evidence was adduced by the appellant by way of affidavits etc. to vouch that he had in fact carried out repairs or incurred any expenditure on the maintenance of the demised premises.
(15) Later on, the respondent-landlord moved an application dated 8th April 1980 under Section 15(7) of the Act for striking out the defense of the appellant on the ground that he had not complied with the order made under Section 15(1) of the Act. In his reply to the said application the appellant contended that an amount of Rs. 1,087/50P was to be adjusted annually in the month of July as he was entitled to the same under clause 14 of the lease-deed which he reproduced therein. However, he did not plead even then that he had, in fact, carried out annual repairs during the years subsequent to 1978. So he claimed deduction of Rs. 1,000 per month on account of annual repairs every year at the said rate as of right. In my view, that was the most appropriate stage when the appellant ought to have averred that he had, in fact, carried out annual repairs or incurred expenditure on the maintenance of the premises and, therefore, he was entitled to the said amount of Rs. 1,087150? per year under clause 14 of the lease-deed. It was a fact within his special knowledge and, therefore, it was his bounden duty to come out with the same. Still worse, the appellant did not take any such plea even when he moved an application for amendment of the written statement under Order Vi, Rule 17 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as "the Code"), during the pendency of the appeal. By way of amendment he wanted to add a preliminary objection in the written statement that "the respondent is also entitled to an amount of Rs. 1,087/50P as annual repairs and maintenance as mentioned in para 14 of the lease- deed which is Ex. A2 and this amount respondent is entitled to adjust because according to para 14 of the lease-deed the liability of carrying out annual repairs and maintenance of the premises in dispute fell upon the respondent and in view of this the respondent is entitled to adjust an amount of Rs. 1,087/50P per year." On a bare reading of the proposed amendment it is manifest that he was basing his claim for adjustment of Rs. 1,087/50 P per year on clause 14 of the lease-deed without more i.e. without stating that he had, in fact, carried out such repairs or incurred any expenditure on the maintenance of the demised premises during the relevant years. On the contrary he stated in para 8 of the application that no evidence was required to be adduced and it had become essential to add the aforesaid plea specifically in the written statement simply to avoid technical objection. No explanation is forthcoming why the appellant did not raise the plea of his having carried out annual repairs or incurred any expenditure on the maintenance of the premises in question and the only justification which is sought to be put forth by the learned counsel for the appellant is that such a plea is implicit in the pleading sought to be introduced in the written statement by way of amendment. In other words, his contention is that the very fact that the petitioner laid claim to adjustment of amount of Rs. 1,087/50 P per year it was implicit that he had discharged the obligation of carrying out annual repairs/maintenance of the demised premises. The argument no doubt quite specious on its face does not bear a moment's scrutiny. As observed earlier, carrying out annual repairs incurring expenditure on the maintenance of the demised premises is a question of fact and without such a plea being there, it cannot be readily assumed that he must have carried out annual repairs maintenance of the demised premises. Instances are galore where people lay fantastic claims or even false claims in order to derive benefit under the cloak of an agreement. The decision in Manmohan Mehra v. J. S. Butalia, , is of absolutely no avail to the
appellant because the said authority deals with a case where a plea was not specifically made and yet it was covered by an issue by implication and the parties went to trial knowing well that the said plea was involved in the trial. In the said case, all the material facts had been stated and what was lacking was a mere repetition of the words of the statutory provision viz. clause (e) of the proviso to Section 14(1). The position in the instant case is altogether different.
(16) Finding himself in this predicament, the learned counsel for the appellant has canvassed with, considerable vehemence that at any rate it was a fit case for condoning omission on the part of the appellant to deposit the amount of Rs. 1,087/50P per year and granting further time to the appellant for doing so. Sustenance for this plea is sought to be drawn from a couple of allegedly extenuating circumstances. In the first instance, it is urged that the appellant did not deposit the amount of Rs. 1,087/50 P per year in the bona fide belief that he was entitled to deduct the same under clause 14 of the lease-deed. This confusion was worse confounded by the observations made by the Tribunal in his order dated 1st March 1979, adverted to above. Emphasis is laid by the learned counsel for the appellant on the words, "the appellant has been found to be entitled to adjust Rs. 1,087/50 P every year for carrying out annual repairs." which according to him lend considerable support to his i.e. appellant's interpretation of clause 14. It is, therefore, urged that failure on his part to deposit the said amounts cannot be said to bowlful or contumacious as held by the learned Rent Control Tribunal. Hence, he was entitled to exercise of discretionary power vesting in the courts below to condone this omission.
(17) In Hem Chand v. The Delhi Cloth & General Mills Co. Ltd. and another, , it was held that :
"IT cannot be said that in the event of the failure of the tenant to deposit the rent under Section 15(1) the Rent Controller is bound to pass an order for recovery of the possession for it yet remains for die landlord to prove his case that there was non- compliance of Section 14(1)(a). In view of Section 15(7) an inquiry will have to be proceeded with even when the defense of the tenant has been struck out. More so this procedure is applicable when the defense is not struck out but only there is a failure to comply with an order under Section 15(1). It is true that the Rent Controller has no power to condone the failure of the tenant to pay arrears of rent as required under Section 15(1), but it cannot by itself be said that the right to obtain an order for recovery of possession accrued to the landlord."
(18) The aforesaid observation was made by the Supreme Court while holding that Section 15(7) confers a discretion on the Rent Controller either to strike out the defense or not depending upon the circumstances of the case. The effect of this judgment which held the field for several years was that in the event of failure on the part of the tenant to strictly comply with an order under Section 15(1) of the Act, the Rent Controller was powerless in condoning the delay in paying/depositing the rent, as ordered. However, it was discretionary with him to strike out the defense under Section 15(7) of the Act or not depending upon whether the non-compliance was deliberate, willful or contumacious. The recent decision of the Supreme Court in Ram Murti (supra) has, however, added a new dimension to the Rent Control Act by holding that the Rent Controller has power to condone the default on the part of the tenant in making payment or deposit of future rent or to extend time for such payment or deposit. Observed the Supreme Court :
"IT would be incongruous to hold that even if the defense of the tenant is not to be struck out under S. 15(1), the tenant must still be visited with the punishment of being deprived of the protection under Section 14(2). In Hem Chand's case ...
..........If the landlord has still to make out a case before the Rent Controller that he was entitled to an order for eviction of the tenant under S. 14(1)(a), surely the tenant has the right to participate in the proceedings and cross-examine the landlord. It must logically follow as a necessary corollary that if the defense is not to be struck not under S. 15(7) it means that the tenant has still the defenses open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection under S. 14(2). What is of essence of S. 14(2) and of S. 15(6) is whether there has been a substantial compliance with the order passed under S. 15(1). The words "as required by S. 15(1)" in these provisions must be construed in a reasonable manner. If the Rent Controller has the discretion under S. 15(7) not to strike out the defense of the tenant, he necessarily has the power to extend the time for payment of future rent under S. 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control."
(19) That being the legal position there can be little doubt that the Rent Controller had the power to condone the delay omission on the part of the appellant in paying/depositing amount of Rs. 1,087/50P every year subsequent to 1978. However, on a consideration of the facts and circumstances of the case both of them declined to condone the lapse on the part of the appellant. It is well settled that the appellate Court shall be loath to interfere with the exercise of the discretionary power by the court below unless it is shown that the same has been exercised arbitrarily, capriciously or whimsically and not on well settled judicial principles. Nothing of the kind has come on the record to persuade me to interfere with the exercise of discretion by the courts below in the instant case. It may be pertinent here to notice some observations made by the Supreme Court in this context:
"IT is not inconceivable that the tenant might fail to comply with the requirements of S. 15(1) by the date line due to circumstances beyond his control. For instance, it might not be possible for the tenant to attend the Court to make the deposit on the last day if it is suddenly declared a holiday or on account of a serious accident to himself or his employee, or while going to the treasury he is waylaid, or is stricken with sudden illness, or held up on account of riots or civil commotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctually making the deposit commits breach of trust and disappears, or some other circumstances intervene which make it impossible for him for reasons beyond his control to physically make the deposit by the due date. There is no reason why the refusal of the Rent Controller to strike out the defense of the tenant under S. 15(7) in such circumstances should not ensure to the benefit of the tenant for purposes of S. 14(2)."
(20) Obviously, their Lordship had in their mind eventualities which rendered it almost impossible for the tenant to pay or deposit the rent as ordered under Section 15(1) of the Act by the due date. Although various situations spelt out by their Lordships which may warrant condensation of delay I omission on the part of the tenant in complying with an order under Section 15(1) of the Act are merely illustrative and not exhaustive but they certainly indicate that the power to condone the delay is not to be exercised as a matter of course. In other words, there must be cogent grounds showing the existence of circumstances which prevented or stood in the way of the tenant in paying depositing the future rent in time. The mere pretence that the appellant was entertaining a mistaken belief as regards the true interpretation of clause 14 of the lease-deed or that he was misled by the foregoing observations of the Tribunal would be no ground for condensation of delay when the language of clause 14 is explicit and clear in terms and the order of the Tribunal specifically states that adjustment was allowed only for one more year i.e. 1978. So, the appellant has to blame himself and none else for landing himself in this critical situation by taking it fur granted that he was entitled to adjust Rs. 1,087/50P per year as of right.
(21) To sum up, therefore, I find no merit in S.A.O. No. 37185.
(22) This brings me to S.A.O. No. 84185. The relevant facts to the decision of this appeal in brief are that at the time of filing the eviction petition the landlord late Lt. Gen. T. R. Pahwa was residing at Dehradun. He had only one child, namely, Mrs. Romila Singh who was married to an officer in the Air Force. His son-in-law was then posted at Delhi and was due to retire in 1978. He had decided to settle in Delhi. The landlord, therefore, wanted to shift to Delhi so that his only child Mrs. Romila Singh could live with and look after him. The relevant pleading in the eviction petition is extracted below for ready reference :
"the petitioner]landlord, who is the owner of the promises in question, requires the same for his residence and for the residence of his only child. Mrs. Romila Singh, who is also dependent upon the Petitioner for purposes of residence and that the petitioner has no other reasonably suitable accommodation available with him at Delhi. The petitioner is an old man of 71. He has no other child except his one daughter, the said Mrs. Romila Singh. Presently, the petitioner is residing at Dehradun. He is all alone over there. He has no one else to look after him. He wants to come and live in his house in Delhi, so that he is properly looked after by his only child, Mrs. Romila Singh. His son-in-law, who is retiring in 1978, has decided to settle in Delhi."
(23) As ill luck would have it, Lt. Gen. Pahwa died during the course of eviction proceedings. His daughter Mrs. Romila Singh and her sons who succeeded to the estate of the deceased under a will executed by 'the deceased sought to be brought on record as his legal representatives. The application was opposed by the appellant-tenant on the ground that the right to sue based on bona fide requirement being personal to the deceased did not survive to his legal representatives and as such they were not entitled to pursue the eviction petition. However, in view of the fact that the eviction petition was also founded on clauses (a) & (j) of the proviso to Section 14(1) the learned Additional Rent Controller allowed the application vide order dated 29th January 1980 and they were brought on record. The learned counsel for the appellant has canvassed with considerable force that even if cause of action survived so far as grounds under clauses (a) & (j) of the proviso to Section 14(1) were concerned, the ground of eviction based purely on personal requirement of the deceased landlord cannot survive. In order to appreciate the argument in proper legal perspective it would be necessary to advert to a couple of decisions of the Supreme Court which have a direct bearing on the point in issue. In Smt. Phool Rani & others v. Naubat Rai Ahluwalia, the eviction of the tenant was sought on the ground that the premises were required by the landlord "for occupation as a residence for himself and members of his family". The landlord died during the pendency of the appeal. The question arose whether the right to sue survived to 'his heirs or not. The Supreme Court held that :
"THUS,the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds-we will forget for a moment that the plaintiff is dead-the premises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff and the members of his family but reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff."
THEIR Lordships further observed that :
"IF the appellants were permitted to continue the proceedings, the list will assume a complexion wholly beyond the compass of the original cause of action Indeed, it is difficult to see how, without a fundamental alteration of the pleadings, appellants could continue the proceedings. Such an alteration will fall beyond the scope of amendment of pleadings, permissible under a most liberal interpretation of Order 6, Rule 17 of the Code of Civil Procedure ....................The appellants' emergence in the proceedings will require the determination of wholly different and distinct issues. Their requirement, not that of the plaintiff, and the availability to them-not to the plaintiff-of other reasonably suitable residential accommodation will now form the centre of conflict."
(24) The correctness of this decision was called in Question in a subsequent case Shantilal Thakordas & others v. Chimanlal Maganlal Telwala, . Although the said case was under Section
13(l)(g) of Bombay Rents, Hotel and Lodging House Rates Control Act and the landlord had sought the eviction of the tenant on the ground of his requiring the premises reasonably and bona fide for occupation by himself viz, for the use of the partnership firm in which he was a partner but the soundness of the decision in Smt. Phool Rani's case being in challenge their Lordships specifically dealt with the question in the light of the circumstances obtaining in Smt. Phool Rani's case. Dissenting from the view expressed in Suit. Phool Ram's case their Lordships observed :
"IF the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of hisfamily.On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family' of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for bids occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be .not members of the family of the deceased landlord."
(25) Obviously the short question for determination is whether the instant case would fall within the four-corners of the ratio decidendi of Shantilal Thakordas's case. The answer to this question would, therefore, turn on whether the instant case can be said to be "for occupation as a residence by the landlord for himself and members of his family". As seen above, there is not a whisper in the averments made in the eviction petition about the requirement of the premises for any member of the deceased landlord's family who was dependant upon him. All that the original landlord alleged was that he required the premises for his residence and for the residence of his only child Mrs. Romila Singh who was also dependant upon him for the purpose of residence. Surely the mere fact that Mrs. Romila Singh was his only child would not entitle him to seek possession of the premises in question under clause (e) of proviso to Section 14(1). This is not the postulate of law. Needless to say that the emission on the part of the deceased landlord to aver that Mrs. Romila Singh was a member of his family cannot be attributed inadvertence, oversight or mere accident. It was obviously deliberate inasmuch as the deceased landlord was fully conscious of the fact that being a Married daughter Mrs. Romila Singh was not a member of his family, more so when she was not living with him. Shri N. B. Singh, husband of Mrs. Romila Singh, was then holding the rank of Wing Commander in the Air Force, and he was stationed at Delhi. Admittedly he was residing at Delhi in the official accommodation allotted to him and Smt. Romila Singh was living with him. So, by no stretch,of reasoning there could be called a member of his father's.family. No doubt, the concept of what constitutes a, family is pot something static or capable of concise definition. It has to be construed liberally having regard to the socio-religious and economic structure of our society. So, while it cannot be laid down as a rule of thumb or of law that in no. case a married daughter can be a member other father's family because there may be cases when due to sheer necessity that for economic reasons she may have to live with her parents but the very fact that she was living happily with her husband at a place other than the place where the deceased landlord was living all alone apparently deterred the latter from even pleading that she was member of his family. It bears repetition that in Smt. Phoola Rani's case the landlord had specifically pleaded that the premises were required bonafide by him for .occupation as a residence for himself and members of his family. The latter part of the averment is not to be found in the instant case. Hence, the decision in Shantilal Thakordas (supra) cannot be said to be an authority for the decision of the point in issue in the instant case. "The ratio decidendi of the said case simply was that the requirement of the occupation of the premises by the members of the family of the original landlord could not be said to be only his requirement and as such it did not cease to be the requirement of the members of his family on his death. Since there is no such plea in the instant case it would be highly unreasonable to apply that ratio to the facts of the instant case. As said by the Supreme Court in H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur Mothers etc. v. Union of India,
"IT is difficult to regard a word, a clause, or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that Judgment."
SEE also the following statement of law in para 573 of Halsbury's Laws of England, 4th Edition; Volume 26 :
"THE enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which if is baged, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. What constitutes binding precedent is the- ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or judge-made and a minor premise consisting of the , facts of the case under immediate consideration."
(26) The learned Additional Rent Controller rightly endeavored to draw a distinction between the two cases on facts in arriving at the conclusion that th,e married daughter could not be considered a family member of her father & dependent upon him for accommodation because Mrs. Romila Singh was living separately with her husband at Delhi. However, it seems that the learned Tribunal without carefully reading the averments embodied in the eviction petition hastened to get over this difficulty by placing reliance on the decision of this Court in Mrs. Kundan Lal Mehta & others v.Smt. Parkashwati 1980(2) Rcj 551(9). It was observed by the learned Judge (Sultan Singh, J.) in the said ease that :
"PLEADING and proving the four ingredients of clause (e) of Section 14(1) of the Act are necessary before an order of eviction can be granted........If all the ingredients constituting the cause of action within the meaning of clause (e) of Section 14(1) of the Act are not pleaded and proved the landlord is not entitled to an order of eviction. It is also well known that no evidence can be looked into a plea which was never raised in the pleadings. What has happened in this case is that the appellants-tenants of their own accord, as stated above, have, pleaded in the written statement that the premises were let not only for residence but both for residence and commercial purposes. It is also pleaded by them that the landlady has sufficient accommodation meaning thereby that she has reasonably suitable residential accommodation. When evidence was being led before the Controller it appears that no objection was raised against the recording of the evidence on these two facts. The Controller gave his finding on these two facts, one in favor of the appellants and the other against the respondent. The Tribunal however on considering the evidence reversed the finding of .............. The question for decision therefore is whether in these circumstances the respondent-landlady is to be non-suited for not pleading the two material ingredients of clause (c) section 14(1) of the Act. This is second appeal. No specific objection was taken in the written statement. It was neither argued before the Controller nor before the Tribunal. This is a new point in the appeal which may or may not be allowed to be argued by the appellants."
(27) It was further observed by his Lordship that if such an objection had been taken in the first instance the landlord might have amended the plaint i.e. eviction petition with the permission of the Court under Order Vi Rule 17 of the Code. Obviously reliance on this decision is totally misplaced. The said case dealt with a situation where parties had gone to the trial and adduced evidence even with regard to such ingredients of clause (e) of the proviso to Section 14(1) which had not been pleaded specifically by the landlord but which were understood by the parties to exist by implication. The true scope of the observation of Lord Dunedin in Siddik Mahomed Shah v. Mt. Saran , (10) that "no amount of evidence can be looked into upon a plea which was never put forward" was explained by the Supreme Court in Nagubai Ammal & others v. B. Shama Rao & others, as follows:
"THE true scope of this rule is that evidence let in on issues 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."
(28) Obviously the rule enunciated by the Supreme Court in Nagubai Ammal can have no application to the facts of the instant case. Certainly the parties had not gone to the trial on the question whether the legal representatives of the deceased landlord bona fide required the premises in question as residence for themselves, rather the appellant-tenant had at the very outset raised the plea in the written statement filed by him to the amended eviction petition that the cause of action did not survive to his legal representatives and the same being personal to the deceased landlord perished with him. So, by no stretch of reasoning it can be urged that the parties went to trial and adduced evidence with full knowledge of the issues involved and there was no element of surprise. The objection was raised at the threshold and the eviction petition was liable to be thrown overboard straightaway on the demise of Lt. Gen. Pahwa as regards cause oi action based on bona fide personal requirement is concerned. Needless to say that it was his requirement that he should live in his house at Delhi where his daughter was then living on account of the posting of her husband as he was living all alone at Dehradun and he wanted his daughter and son-in-law etc. to live with him in the premises in question so that they could look after him. Obviously this requirement of the landlord died with him as it was no longer possible for him to live in the premises in question Along with his daughter. It is true that the expression "himself" is not to be construed narrowly and it will take within its sweep the family of the landlord also. However, it would be a question of fact in each case as to what particular member of the family would be of necessity entitled to live with the landlord so that it can be said that the premises are needed for himself and the dependent members of his family. In Krishna Devi v. Parmeshwari Devi, 1977 Rlr 479, (12) the landlady was not keeping good health and was alone. So she sought eviction of the tenant on the ground that she wanted her only child viz. a married daughter and her son- in-law Along with her grand children to come and live with her. It was observed by Sachar, J. (as his Lordship then was) that :
"THE argument is that the premises could only be got vacated if they are required bonafide by the landlady for occupation as residence for herself or for any of the member of her family dependent on her. Admittedly the married daughter is not dependent on the landlady and, therefore, requirement for their occupation as such would not satisfy the statute. But the requirement pleaded by the landlady is that she requires the family of her married daughter to come and live with her, as she is unable to look after herself and thus the requirement she is pleading is for 'herself' which is covered by the clause in the word "himself'."
(29) I am in respectful agreement with this view and applying this test there can be no manner of doubt that the requirement pleaded in the instant case was his personal requirement falling Under first part of the postulate "..........are required bonafide by the landlord for occupation as a residence for himself or for any member of his family .dependent on him......... or for any person for whose benefit the premises are held" of clause (e).the second part of the said postulate comes into operation only when the landlord does not intend to reside in the house himself but places it at the disposal of the member of his family. (See Sain Dass Berry v. Madan Lal Puri, 1972 Rcj (SN) 8, (13) T. C. Rekhi v. Smt. Usha Gujral, 1970 Rcr 292 (14) and P, D Sharma v. Ram Lubhaya, 1970 Rcj 160). (15) As said by P. N.Khanna,J. in Sain Das Berry's case :
"THE phrase "or for any member of his family dependent on him", occurring in the clause is designed to meet an altogether different objective. If the landlord himself 's not to reside in the premises, as for instance, when he lives outside Delhi he still is entitled to claim ejectment of his tenant, if the premises are required "for any member of his family dependent on him" or "for whose benefit the premises are held"."
(30) Obviously this was not the case set up by the landlord in the eviction petition. Hence, the cause of action which was purely personal to the landlord could' not have survived to his legal heirs on his death.
(31) There is yet another aspect of the matter, namely, that the respondents having been brought on the record as legal representatives of the deceased landlord because eviction of the , appellant was sought on the grounds falling under clauses (a) & (j) also it was open to them to seek amendment of the eviction petition instead of filing fresh eviction petition under clause (e) slating' facts that they required the premises in question bona fide as residence for themselves and pleading other essential ingredients of clause (e). However, they took no steps in this direction but without affording any opportunity to the appellant to meet the new situation arising on account of change in the circumstances due to death of Lt. Gen. Pahwa straightaway adduced evidence to the effect that they wanted to reside here because of the retirement from service of Mrs. Romila Singh's husband during the pendency of the eviction proceedings. They also adduced evidence to the effect that they had no other suitable residential accommodation at Delhi and that they did not want to live at Dehradun although they owned a house there and one of their sons was living at Dehradun. Certainly it was not permissible to them to lead evidence on facts which were never pleaded and which the appellant had no opportunity to deny or rebut. So, by no stretch of reasoning it can be said that there was no element of surprise so far as the defense was concerned. Since the whole complexion of the case had undergone a metamorphosis on the death of Lt. Gen. Pahwa, it was obligatory on the part of his legal representatives to have come forward with all necessary facts required to be pleaded under clause (e) of the proviso to Section 14(1) because it was then their requirement and not the requirement of the deceased landlord which was being pressed into service for eviction of the appellant. Nothing of the kind was done and all rules of pleadings and fair trial have been given a go by. Unfortunately all this has received the seal of approval at the hands of the Tribunal as a sequel to misreading and misapplication of the law on the subject. Surely the ratio of judgment in Mrs. Kundan Lal Mehta (supra) was not intended to cover a case like the present.
(32) To sum up, therefore, I hold that the cause of action on the ground of bona fide personal requirement did not survive to the legal representatives of the deceased-landlord in the instant case and the whole trial with regard thereto is vitiated on account of non-compliance with well established rules of pleadings and trial. Consequently the order of eviction passed by the learned Tribunal under clause (e) of the Proviso to Section 14(1) cannot be sustained.
(33) As a result, S.A.O. No. 84185 succeeds and the impugned order made under clause (e) of the proviso to Section 14(1) of the Act is set aside. However, S.A.O. No. 37185 being absolutely devoid of any merit is dismissed. Having regard to the fact that there is acute scarcity of residential accommodation in this metropolis it would be in the interest of justice that some time is allowed to the appellant to surrender vacant and peaceful possession of the premises in question to the respondents. He is accordingly allowed two months for this purpose, failing that the respondents will be entitled to take out execution and evict him. Keeping in view all the circumstances of the case, no order is made as to costs.