APEX COURT HELD THAT
CODE OF CIVIL PROCEDURE, 1908 – Or. VI Rr. 1, 2 & 4 – Pleadings – Material facts and evidence – Distinction between facta probanda and facta probantia – Deficiency in pleadings – When cannot be raised in appeal – RENT CONTROL LAW – Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 – Ss. 5(3), 13(1)(g), 13(1)(l) & 13(2) – Eviction – Bona fide requirement – Co-landlord – Comparative hardship – Alternative accommodation – Oral family arrangement – Subsequent events – Revisional interference with concurrent findings – Scope.
Eviction suit instituted by co-owner/co-landlord seeking eviction of tenant from flat on grounds of bona fide requirement, comparative hardship and acquisition of alternative accommodation by tenants – Trial Court and Appellate Bench concurrently decreed eviction holding landlord’s requirement genuine and tenants possessed alternate accommodation – High Court in revision reversed concurrent findings and dismissed suit holding that landlordship and family arrangement had not been specifically pleaded and that plaintiff relied upon unpleaded case through evidence – Sustainability.
Held : Pleadings are required to contain only material facts constituting cause of action or defence and not evidence by which such facts are to be proved. Distinction between facta probanda (material facts to be proved) and facta probantia (evidence proving such facts) is fundamental. Family arrangement, share certificates and internal allocation among co-owners constituted evidentiary particulars supporting pleaded status of co-landlord and bona fide requirement and need not themselves have been separately pleaded in plaint.
Plaint specifically pleaded that plaintiffs and family members were landlords of suit building and sought eviction on statutory grounds under Rent Act. Such averments sufficiently disclosed material facts necessary for cause of action. Subsequent affidavit evidence elaborating family arrangement, shareholding and residential necessity merely furnished proof of pleaded facts. Both tests of pleading and proof stood satisfied.
Deficiency in pleadings cannot ordinarily be raised for first time in appeal where parties understood controversy, went to trial fully conscious of issues involved and adduced evidence thereon. Defendants had full opportunity to contest plaintiff’s status as co-landlord and bona fide requirement and actively participated in trial.
Share certificates evidencing co-ownership in leased land and building conclusively established plaintiff’s status as co-owner and consequently co-landlord within meaning of Section 5(3) of Bombay Rent Act. By virtue of Section 8 of Transfer of Property Act, transfer of land carries incidents attached to earth including building constructed thereon. Co-owner entitled to receive rent falls squarely within statutory definition of landlord.
Courts are entitled in appropriate circumstances to consider subsequent events to render relief meaningful and in accord with present realities, provided fairness to parties is maintained. Oral family arrangement allocating residential use among siblings is legally permissible and enforceable even absent formal partition. Such arrangement could legitimately be relied upon to explain continuing bona fide need and hardship.
Temporary occupation by landlord of adjoining flats during pendency of proceedings did not extinguish bona fide requirement where accommodation remained insufficient for entire family and premises were earmarked for exclusive use of brothers under family arrangement. Tenant cannot dictate manner in which landlord should utilise available premises.
Concurrent findings established that tenants had acquired alternative accommodation and sale of alternate premises during pendency of suit was effected only to defeat eviction proceedings. Comparative hardship overwhelmingly favoured landlord who continued without suitable accommodation in Mumbai. High Court exceeded revisional jurisdiction in upsetting concurrent factual findings unsupported by perversity.
(Paras 25 to 60)
HELD
Pleadings must contain material facts constituting cause of action or defence but need not contain evidence by which such facts are to be proved. Distinction between facta probanda and facta probantia must be maintained. (Paras 26 to 34)
In eviction suit under Rent Act, plaintiff is required to plead and prove only existence of landlord-tenant relationship and statutory grounds for eviction. Detailed evidentiary particulars such as family arrangement or share certificates are matters of proof and not essential pleadings. (Paras 35 to 40)
Where parties understood controversy, led evidence and went fully to trial, objection regarding deficiency in pleadings cannot ordinarily be permitted to be raised at appellate stage. (Para 41)
Co-owner entitled to receive rent answers statutory definition of landlord under Section 5(3) of Bombay Rent Act. Share certificates relating to land and building sufficiently established plaintiff’s status as co-landlord. (Paras 42 to 46)
Court may take cognisance of subsequent events and oral family arrangements while adjudicating bona fide requirement so as to render relief just, meaningful and consistent with current realities. (Paras 47 to 50)
Temporary occupation of available premises by landlord during pendency of litigation does not negate bona fide requirement where accommodation is insufficient and comparative hardship weighs in landlord’s favour. (Paras 51 to 60)
RESULT
Appeal allowed. Judgment of High Court set aside. Concurrent judgments and decree of eviction passed by Small Causes Court and Appellate Bench restored.
