Sukhdev Raj v. Rukmani Devi And Others .

S.P Goyal, J.:— This petition was admitted to a Division Bench to resolve the conflict in the two decisions of this Court in Buta Singh v. Banwari Lal . 1984 86 PLR 559. and Sena Ram v. Naubat Ram . 1984 2 R.L.R 702..

2. Shrimati Rakmani Devi respondent No. 1 filed this petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short called the ‘Act’) for ejectment of the petitioner and respondents Nos. 2 and 3 from the shop in dispute on the grounds of non-payment of rent since October 26, 1975 and subletting alleging that the demised premises were let out to respondents Nos. 2 and 3 at a monthly rent of Rs. 15/-, who had further sublet it to Siri Ram, predecessor-in-interest of the petitioner, and one Ramesh Kumar whose name was later on deleted at the request of respondent No. 1. The petition was contested by Siri Ram alone, who claimed himself to be the direct tenant under respondent No. 1, and tendered the amount of Rs. 574/- as assessed by the Rent Controller together with an additional amount of Rs. 25/- on February 25, 1980, which was not accepted on the plea that it was not only short but had been tendered after the expiry of the period prescribed under the Act. The Rent Controller held that the petitioner was a direct tenant and rejected the plea of sub-tenancy. The tender of the arrears of rent, however, was held to be invalid having been not made within the proscribed time and, so, the ejectment of the petitioner was ordered. The Appellate Authority affirmed the order of ejectment relying on the decision in Buta Singh's case (supra). Still dissatisfied, the tenant has come up in this Revision.

3. As observed by Tek Chand, J. in the Full Bench decision of this Court in Ganda Singh v. Ram Narain Singh . AIR 1959 Punjab 147., the basic rule of law of pleadings is that a party can only succeed according to what he has alleged and proved. Otherwise, on the principle of secundum allegate at et probata a party is not allowed to succeed, where he has not set up the case which he wants to substantiate But there is a well established exception to this rule, as observed in Firm Sriniwas Ram Kumar v. Mahabir Prasad . AIR 38 1951 SC 177., that the plaintiff can be given relief on the admission of the defendant if it does not cause any prejudice to the latter. The question which needs determination in the present case, therefore, is as to whether the sub-tenant can be ordered to be ejected for non-payment of arrears of rent when he claims himself to be direct tenant under the landlord even when the landlord has not sought his ejectment on that ground. If the question involved was as to whether a landlord can be given a decree for the arrears of rent in such a situation there would be no difficulty in granting the relief because it could cause no prejudice to pay the rent. The question of his ejectment on the ground of non-payment of rent, however, stands on a different footing. As the landlord never accepted the alleged sub-tenant as his tenant nor sought his ejectment on the ground of non payment of rent, his ejectment, if ordered on the ground of non-payment of rent, would certainly prejudice the rights of sub tenant who never got a chance to avail the opportunity granted under the statute to tender the rent on appearance in this Court Moreover, even if he had effected to tender the rent, the landlord would have certainly declined to accept it

4. Though there is no direct case of any High Court on the point at hand, but in somewhat similar circumstances relief was declined to the plaintiff in the decisions next following. In Ouseph Varghese v. Joseph Aley . 1970 1 S.C.R 921., the plaintiff filed the suit for specific enforcement of an alleged agreement. The defendent denied the agreement and pleaded a different agreement in respect of only one item from the schedule of properties attached with the plaint. The High Court granted a decree qua that item on the admission of the defendent. The decree was set aside by the Supreme Court observing thus:—

“The High Court was wrong in passing the decree in respect of plaint item No. 1 on the basis of the admission of the 2nd defendent in her written statement. The plaintiff did not at any stage accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendent in her written statement were two totally different agreements. The plaintiff did not plead at any stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. Before a decree for specific performance can be given the plaintiff has to plead and satisfy the Court about his willingness to perform his part of the contract.”

5. In the present case, the landlord never accepted the sub-tenant as a tenant at any stage of the proceedings. She would not, therefore, be entitled to claim any relief on the admission of the sub tenant according to the rule laid down by the Supreme Court.

6. In Parekh Brothers v. Kartick Chandra Saha . AIR 1968 Cal 532., three persons claiming themselves to be landlords filed a suit for ejectment of the defendant. The plea set up in the defence was that only one of the plaintiff was his landlord. The plea of the plaintiff, who was admitted to be the landlord to grant him relief on the basis of admission of the defendant was rejected in the following terms:—

“The rule that even though a plaintiff fails on the case that he made out in his plaint he can still succeed on the case admitted by the defendant is confined to cases where the liability is clearly admitted without reservations. The principles cannot be applied to a case where the liability is not admitted at all. Thus in a suit for eviction the case made out in the plaint was that there were three landlords while it was proved as contended by the defendant, that there was only one landlord, who was also one of the plaintiffs. The plaintiff contended that the name of other two co-plaintiffs ought to be treated as surplusage and that he alone could succeed on the admission of defendant.

Held, that the plaintiff could not succeed. The contract that was pleaded was different from the one that was proved in evidence and that the defendant did not admit any liability but was challenging the agreement of tenancy made out as entered into by three landlords”

7. In Lodd Balamukundas v. K. Kothandapani . AIR 1971 Mad 422., the plaintiff had come to the Court with a specific case of protection under Madras City Tenants' Protection Act on the basis of the subject matter of the lease being only a vacant site without any superstructure thereon, which was negatived. In spite thereof, the First Appellate Court granted the relief to the plaintiff on the basis of an admission of the defendant. Relying on a Full Bench decision of the Calcutta High Court in Ramdoyal v. Junmonjoy Coondon . 1987 I.L.R 14 Cal. 791., the judgment was reversed by the High Court holding that it was not open to the plaintiff who came to the Court with a specific case and with a specific ground of relief to go back on them and abandon the same and to claim the same relief on the facts alleged by the defendant. Even in the case of Firm Sriniwas Ram Kumar's case (supra) wherein the exception to the rule of secundum allegate at et probata was recognized, the relief was given to the plaintiff on the admission of the defendant as no prejudice or injustice was likely to be caused to the latter thereby. So, the rule appears to be well established that the plaintiff cannot be given any relief contrary to his case on the admission of the defendant if it is going to cause prejudice and injustice to the latter.

8. Now we will consider the decision in Buta Singh's case (supra) where a contrary view was taken. The learned Judge, though referred to two decisions in Joginder Singh v. Sarup Singh . 1977 2 R.C.J 159, Iqbal Chand v. Avinash Chander Kapur . 1977 2 R.C.J 633. but relied for his view on Joginder Singh's case (supra). In Joginder Singh's case (supra), R.S Narula, C.J held the sub-tenant liable to pay the arrears of rent because he was covered by the definition of the tenant having been inducted by the tenant with the consent of the landlord. As the definition of the tenant in the Act covers a sub-tenant who has been inducted with the consent of the landlord, he would be deemed to be a tenant and liable to pay the rent. The facts of that case were, therefore, entirely different and have no bearing on the present question. So far as Iqbal Chand's case (supra) is concerned, it is not clear from the judgment whether the subtenant was held to be direct tenant under the landlord or not. As a matter of fact, the alleged sub-tenant claimed himself to be a partner of the tenant and never claimed himself to be a direct tenant Because the tenant had not paid the rent the sub-tenant was held liable to be ejected along with the former. The decision in this case, therefore, as well has no relevancy on the question in hand. No other principle of law has been quoted by the learned Judge in Buta Singh's case (supra) for holding that a person who is alleged to be sub-tenant, would be liable to ejectment if the arrears of rent are not tendered by him when he claims himself to be a direct tenant under the landlord. So the rule laid down in Buta Singh's case (supra) cannot be accepted and the decision in that case is accordingly overruled.

9. In the result, this petition is allowed, the impugned order set aside and the petition for ejectment dismissed. No costs.

Sd/- S.D Bajaj, J.

R.M.S

Petition allowed.