Judgment:
Usha Mehra, J.
(1) M/.S. Keshav Metal Works and Mrs. Manorma Vaid, petitioners herein were tenant in the premises bearing No.A-8/A-7/2 New Friends Colony, New Delhi. respondent Mr. J.K. Verma,landlord of the premises sought the eviction under Section 14(l)(e) of the Delhi Rent Control Act (hereinafter called the Drc Act) on the ground of bonafide requirement. Brief facts are that the owner of the premises Mr.J.K.Verma was working in the Steel Authority of India Ltd at Delhi. He was transferred to Burnpur and thereafter retransferred to Delhi. He had taken loan from his employer for raising construction on the premises in question. His employer some where in June 1981 look the decision that those of the employees who had been sanctioned House Building Advance for building a house at the place of their posting should vacate the company allotted house./ lease accommodation within a period of one year l'rom the date of issue of the said circular. This decision was conveyed to the petitioner vide letter dated 4.2.82. Since he was to vacate the company allotted house he needed this premises for his bonafide requirement for himself and members of his family as he had no alternative accommodation available except the premises in question.
(2) Summons were served on the present petitioners who sought leave to defend. The same was allowed. The petitioners herein filed written submissions raising preliminary objections, inter alia, that another petition on the same ground was pending before the Additional Rent Controller (hereinafter called in short ARC), thereforee, this petition for bonafide requirement was not maintainable. On merit they took the plea that the premises was let out for residential -cum-commercial purposes and that they were residing in the premises and also all ending to the business from this very premises, and that the landlord did not require premises for his residence.
(3) Evidence was led by both the parties. The trial court after going through the pleadings and the evidence adduced and also taking into consideration the essential ingredients of Section 14(l)(e) of the D.R.C.Act, namely : (i) whether the landlord was the owner of the premises; (ii) whether it was let out for residential purposes, (iii) whether it was required for himself and member of his family and (iv) whether he had no other reasonably suitable accommodation , came to the conclusion that the premises was required bonafide. While taking note of the above four ingreredients, the trial court came to the conclusion that Shri J.K.Verma was the the landlord owner and that the premises was let out for residential purpose only and that the same was required bonafide by the owner and that he had no alternative accommodation available.The A.R.C. passed eviction order against the present petitioners.
(4) It is against this impugned order of eviction, that the petitioners /tenants, have come up in Revision challenging the said order, inter alia, on the grounds that (1) the eviction petition filed by the respondent/landlord, did not p73 disclose any cause of action as stipulated under Section 14(l)(e) of the Drc Act; alternatively the unregistered lease deed/ rent agreement could not have been looked into by the A.R.C.; (2) that rejoinder cannot take the place of plaint nor can supplement or fill up the lacuna left in the eviction petition; (3) that no independent witness was adduced by the landlord to corroborate his testimony particularly when the onus was on him to discharge. He failed to do so.
(5) I have heard learned counsel for the petitioner Mr.Aman Lekhi and Mr.Vijay Kishan for the respondent. The main thrust of 'Mr. Lekhi's argument is that in the eviction petition it has not been pleaded that the premises was let out for residential purpose alone. Hence the petition lacked material fact which constitute cause of action. One of the essential requirements for securing an order of eviction under Section 14(l)(e) of the D.R.C.Act is establish the letting purpose. It is a mandate of the statute that the landlord must disclose in his petition that the premises was let out for residential purpose only. When it is not pleaded, it means lack of complete material particulars and the petition lacks cause of action. Non pleading of material fact entails rejection of the petition. Mr.Lekhi, in support of his arguments relied on the decision of Supreme Court in the case of Udhav Singh Vs . Madhav Rao Scindia reported in : [1976]2SCR246 , wherein it has been held that all those facts which are essential to clothe the petitioner with a complete cause of action are material facts' which must be pleaded and failure to plead even a single material fact leads to an incomplete cause of action and the petition in that case is liable to be summarily rejected for want of the same. He further contended that in order to decide whether the pillion deserves rejection or not the court has to restrict itself to the 'plaint' alone, Order 7 Rule 11, Cpc, which is reproduced as indicate stipulates the circumstances in which the plaint can be rejected:-
'REJECTION of plaint : The plaint shall be rejected in the following cases : a) Where it does not disclose a cause of action; b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so: d) Where the suit appear from the statement in the plaint to be barred by any law;
(6) The word used in Order7 Rule 11, Cpc, is 'plaint' and not 'pleadings'. thereforee, the cause of action has to be inferred from the bare reading of the plaint or the eviction petition and not from the pladings. Landlord could not have been allowed to seek the aid of the replication or rejoinder in order to point out cause of action. The Court ought to have restricted to plaint alone in order to come to the conclusion as to whether it depicted any cause of action. Order 6 deals with the 'pleadings generally' and Order 7 refers to 'plaint' alone. Under Order 7 Rule 11, Cpc, it is the plaint which has to be rejected and not the pleadings. thereforee, it is the plaint which assumes significance. It is prima facie the reading of the plaint which will show the cause of action. Order 7 gives a mandate that the plaint shall contain the material facts constituting the cause of action and as to when it arose. In the absence of the same the plaint itself is liable to be rejected. Cause of action is a composite entity and untill complete it cannot be said to have arisen. That is the reason in the case of Madhav rao Scindia (Supra) the Supreme Court observed that the lack of material facts would mean want of cause of action and would result in rejection of the plaint.
(7) Mr. Lekhi, also placed reliance on the case of Mithilesh Kumur V. R. Venkataraman and Ors. reported in : [1988]1SCR525 , wherein has been held that the facts constituting cause of action must be specifically pleaded. He controverter the arguments of the respondent that since this objection was not taken by the petitioner/ tenant before the trial court, thereforee, he is estopped from raising it now. According to Mr. Lekhi there is no estoppel against the law. The petitioner cannot be prevented from raising the objection regarding non compliance of the essential requirements of Section 14(l)(e) of the Drc Act. ln fact-Order 7 Rule 11, Cpc, an obligation on the Court to see that no litigant be permitted to waive that obligation of the Court. The duty imposed by the statute subsists irrespective of any objection being raised. In order to strengthen his arguments he placed reliance on the decision of the Delhi High Court in the cases of Dr.(Mrs.)N.D Kanan V. Hindustan Industrial Corpn. reported in : AIR1981Delhi305 , Mr. Edwin Brave V. Hari Chand reported in : 21(1982)DLT209 , and Radha Mohan and Anr. V. Radha Fancy Stores & Ors. reported in : 23(1983)DLT269 , as well as of Supreme Court in the case of A.C. Jose v. Sivan Pillai and Ors. reported in : [1984]3SCR74 . Supreme Court observed that while considering a constitutional or statutory provision there can be no estoppel against a statute. If a process is not permissible or authorised by law no one can be estopped from challenging the same. thereforee he urged that the objection of non compliance of the statutory requirements of Section 14(l)(e) of the Act, even if not taken, at the earliest opportunity before the trial court, that by itself is no ground to disentitle him from urging the same before this Court in the revision petition. Law permits to point out that the petition which lacked cause of action must be rejectd. This being legal proposition can be taken up at anytime.
(8) Perusal of the eviction petition shows that the landlord had not mentioned the purpose of letting. He simply mentioned that Ibe premises was residential. Mere mentioning of the word 'premises - residential' does not mean that it was let out for residential purpose. The word 'residential or for residence' and 'let out for residential purpose' are quite distinct. House may have been constructed for residence, but it is not necessary that it must have been let out for residential purposes. 'For residence' indicate the nature of the building but for what purpose it was was let out or being used. This is the requirement of the statute. thereforee,the mentioning of the purpose of letting is very essential. That is a material fact which constitute the cause of action. He, thereforee, contended that the lacuna left in the eviction petition could not have been filled by filing the rejoinder. Rejoinder is not a part of the petition. To support his arguments he placed reliance on the decision of the Constitution Bench of the Supreme Court in the case of M.S.M.Sharma, V.SriKrishna Sinha and Ors. reported in : AIR1959SC395 . wherein it was observed that 'It would not be right o permit the petitioner to raise question, which depends on facts which were not mentioned in the petition, but were put forward in a rejoinder, to which respondent had no opportunity to reply'. The factum of letting purposes was not pleaded in the first instance in the eviction petition, thereforee, deficiency could not have been made good in the rejoinder. In the absence of material facts having been pleaded the eviction petition ought to have been rejected. To support his arguments Mr.Lekhi further placed reliance on the decision of the Supreme Court in the case of Shri H.D. Vashishta V. M/s Glaxo Laboratories (L) (P) Ltd. reported in : AIR1979SC134 . According to him this Court in the case of Raj Rani V. Jain Chand reported in 1986 Rlr 284 held that 'though ingredients of eviction ground should be slated in eviction petition, omission is not fatal if opponent is not prejudicial'. According to him this view of the Delhi High Court is in total contradiction to the law laid down by the Supreme Court in Madhav Rao Scindia's case. After referring to and relying upon the Supreme Court decision, the decision of Delhi High Court and other decisions arc per-incuriam. Decision per incuriam are not binding as precedent. Since Supreme Court in the case of Majati Subbarao V. P.V.K.Krishna Rao reported in Jt 1989 (3) Sc 894, did not discuss Order 7 Rule 11, Cpc, moreover, it was dealing with independent ground for eviction taken in written statement, hence petition was held to be maintainable by the Supreme Court. Otherwise, this decision of the Supreme Court is not applicable to the facts of this case.
(9) His second limb of arguments has been that the trial court could not have relied on the unregistered lease deed. The lease deed executed between the landlord and leant being an unregistered document the term of the same could not have been looked into. To support his arguments he relied on the following cases namely Sri S Sita Maharani and Ors. v. Chhedi Mahto and Ors. reported in : AIR1955SC328 , Satish Chand Makhan and Ors. V. Goverdhan Das By as & Ors. reported in . According to him in all these cases the Apex Court affirmed this view. However, the Supreme Court in its decision in the case of Rai Chand Jain,V.Chandra Kanta Khosla reported in : AIR1991SC744 , holding that the High Court in exercise of its power can reverse the findings of fact, if comes to the conclusion that those were not based on the evidence adduced and that unregistered lease deed can be considered for determining whether lease was granted for residential or non residential purpose i.e. for collateral purpose. The Supreme Court in this case did not lake note of its full Bench decision in the case of Sri S Sita Maharani and Ors. nor followed its judgment which dealt with the meaning of the word 'collateral purpose'. Hence the decision in the case of Rai Chand Jain (Supra) will not be binding on this Court nor attracted in the facts and circumstances of this case. When there is conflict of opinion between the two Benches of the Supreme Court, the High Court should follow Larger Bench. This Court should place reliance on the decision of the Supreme Court in the case of Sri S. Sita Maharani (Supra) rather than on Rai Chand Jain's case. Moreover, the terms of unregistered lease deed cannot be looked into even for 'collateral purpose'. In view of the Apex Court's decision in the case of Sri S.Sita Maharani (Supra) the view taken by the Delhi High Court holding terms old unregistered lease deed regarding letting as collateral purpose is per-incuram and not binding as precedent. Moreover, the landlord having not pleaded the letting purpose in the eviction petition ought not to have been allowed to lead evidence to prove the purpose of letting. That being in variance with the pleading could not be looked into. Even otherwise there was no independent witness adduced to prove the purpose of letting. Moreover the same premises has two addresses. The testimony of RW-2 completely ignored and disregarded.
(10) Mr. Vijay Kishan counsel for respondent/landlord on the other hand while refuting the arguments of Mr. Lekhi contended that in the eviction petition if was clearly mentioned that the premises was residential and was occupied by the leant and members of his family. This sentence clearly implies that premises was let out for residence. Thus by implication it was understood by the tenant that the purpose of letting was residential. It was only after In sowing the case of the landlord that he look the defense in his written statement that the premises was let for residential cum commercial purpose. Once the party understood the case of the other which was further clarified in the rejoinder , and parties went to trial with that understanding, then he cannot be permitted at a later stage to contend that the petition lacked mater ial particulars and facts or did not disclose cause of action. This objection ought to have been taken at the first available opportunity. It is neither a legal objection nor pertains to the statue. It pertains to facts which were well understood by the parties. Hence the authorities relied by enabled the landlord to either withdraw the petition or amend the same. After the parties led evidence addressed arguments on that issue now since the tenant lost before the trial court he cannon be permitted to take up this objection. To stress that this is not the stage to take up this objection he placed reliance on the decision of Supreme Court in the case of N. Jayaram Reddy and Anr. v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool reported in 1979 Sc 1393. In that case the sole appellant died. His legal representatives were not brought on record. The objection of appeal being abetted was not taken. Hence the Supreme Court rejected t he objection while observing that :
'IT has to be appreciated that the point of defense, which has been willfully or deliberated abandoned by a party in a civil case at a crucial stage, when it was most relevant or material cannot be allowed to be tajeb kater at the sweet will of the party.'
(11) Mr. Vijay Kishan in order to bring home his point that the purpose of letting was known to the tenant drew my attention to para 4 of the eviction petition. In para it has been mentioned that the nature of the premises was 'residential' and not 'non- residential'. Moreover the lease deed was annexed with the petition. thereforee if formed part of the petition. He, thereforee, contended that the tenant understood that the premises was let out for residential purpose. The lease agreement executed between the parties stipulates that premises was let our for residential purpose. In reply to para 4 the tenant took the plea that 'the premises is residential and commercial and has been let out as such'. Again in reply to para 18(a) (1) of the petition, the present petitioners denied that the premises was let only for residential purposes, instead he pleaded that 'the premises was let for residential and commercial purpose'. The landlord in para 4 of the replication refuted that the premises was let out fo r residential cum commercial purpose. It was reiterated that the premises was let out for residence and for no other purpose. Similarly in para 18(a)(1) of the replication it was reiterated that the premises was let out for residential purpose and that lease deed was filed with the eviction petition. Mr. Vijay kishan, thereforee contended that the tenant when in the written statement fo his own accord took the plea that the premises was let out for residential-cum-commercial purpose he understood that the landlord had pleaded the the premises was let out for residential purpose only. There was no mistaking the fact that the material facts were known to him. The issued in dispute were under stood by the parties and thereforee led evidence on those disputed points. One of the points in disputed was whether the premises was let out for residential purpose only. Moreover in replication the allegation of the tenant that premises was liked out for residential-cum-commercial purpose were specifically denied. It was made clear that premises was let only for residence. I t is well settled principle of laws that replication is part of the pleading. It is only after understanding the pleading the facts and the point in disputed that they led evidence.
(12) The respective arguments addressed at the Bar by be he the counsel as well as after carefully considering the pleading, documents, evidence oral and written submissions we can say that ir parties understood each other's case and led evidence accordingly then that party cannot be allowed to raise the objection about the maintainability of the eviction petition.
(13) The main thrust of Mr. Lekhi's arguments had been that eviction petition alone ought to have been seen by the trial court in order to find out cause of action. Moreover this being a legal objection can be raised at any time, even at appellate stage. No doubt it is a mandate of the statute under Section 14(l)(e) of the Act that the eviction petition must disclose the purpose of letting, but we cannot ignore the the fact that petitioner knew the case of the landlord, and thereforee, led evidence on that issue. thereforee, subsequently tenant cannot be allowed to raise the objection about the maintainability of the petition on account of lack of material facts or cause of action. Present petitioners clearly understood the case of the landlord regarding letting purpose, that is why in para 4 of the written statement he took the plea that 'the premises is residential and commercial and has been let as such'. He alleged that premises was let out for residential-cum-commercial purpose. This conclusion gets support from the reading of para 18(a)(l) of the written statement where it has been stated 'it is denied that the premises were let only for residential purpose. Let for residential and commercial purpose'. In para 14 of the eviction petition it is clearly pleaded that the tenancy commenced on 10.4.78 and an agreement was written when possession of the house was delivered. Clause 5 of the said agreement slates that the lessee shall use the premises for residential purpose only. In para 4 of the replication it has been staled that the agreement was attached with the eviction petition. The tenant, present petitioner in Ground 'B' of his application for leave to defend admits that the property was leased to him by the landlord by lease deed dated 6.4.78, commencing from 10th of each month. Once, the document i.e. lease agreement was annexed with the petition by the landlord then that would form part of Ibe pleading. This implies that tenant/ present petitioner knew that the landlord had set up in the petition, the letting purpose as residential only.
(14) This Court has repeatedly observed that even where all the ingredients were not pleaded, but parties were aware of the same and led evidence, then the plea that the petition did not disclose cause of action or the letting purpose was not pleaded, cannot be raised for the first time in appeal or in revision as held in the following cases :- 1. Paramjit Singh & Ors. v. Bawa Gurdas Ram & Ors.reported in 1978 (2) Rcj 40. Sri Gurdial Nagdev V. Smt. Devi Bai reported in 1979 (1) Rcr 119. 3. Brigadiar Pritam Pal Singh (Retd.) V. Shri V.P. Raman reported in 1982 (2) Rcr 227.Arvind Berry V. Admiral A.P.S. Bindra reported 1985 25 Rcr 263 Anand Saroop Gupta V. Zalim Singh reported in 1991 44 Dlt 343. Raj Rani v. Gian Chand, reported 1986 Rlr 284
(15) In the above cases it has been observed that where all the pleas in dispute are known, though even if not specifically taken but known to the parties by implication then the mere fact that the plea was not specifically taken in the plaint would not disentitle that party from the relief sought particularly when the said plea was proved by evidence without any objection. In such a situation no prejudice seems to have been caused.
(16) In view of the settled legal position the tenant at this stage in revision cannot be permitted to raise this objection. This objection is not purely a legal objection, it pertained to facts pleaded and understood by the parties and thereafter led evidence. Hence petitioner is now stopped from raising this objection before this Court in revision. To arrive at this conclusion I am supported by the decision of our own High Court in the cases of Mrs. Kundan Lal Mehta & Ors. V. Smt. Parkash Wati reported in 1980 (2) Rcj 551. The facts of that case were that the landlady in her eviction petition failed to plead letting purpose and that she had no other reasonable suitable residential premises. The tenant in his written statement pleaded that premises were let for residential-cum-commercial purpose. Since in that case, all the ingredients of Section 14(l)(e) were not pleaded, nor any objection was taken before the Controller regarding non-disclosure of cause of action, the court held that ifa tenant of his own accord pleads in his written statement that the premises were not let out for residential but for residence -cum-commercial purpose then he cannot allege that he was not aware about the case od the landlord. Same view was followed in the cases of Parveen Sarin vs.Shri Manbir Singh & Anr. reported in 1981 (1) Rcr 697 and Raj Bahadur & Others vs. Smt. Sushila Devi Nigam & others reported in : 19(1981)DLT407 ,where in it has been observed that 'it is correct that the landlady did not plead the requirement of her family and she also did not disclose the existing accommodation available to her. These facts were no doubt material to constitute the cause of action for determination of the fact whether the land-lady had any other reasonably suitable residential accommodation. From the written statement and the rejoinder, the available accommodation and the family members were made known to the appellants'.
(17) Moreover, the letting purpose was made further clear in replication which was filed under order of the court. It is a well established principle of law that the plea taken in replication forms part of the pleadings particularly when the replication was filed at the instance of the court. Moreover, if all the ingredients are not mentioned in the eviction petition, but are pleaded in the replication, that would form part of the pleadings and the petition can not be rejected for want of cause of action.Similar view was expressed by the Supreme Court in the case of Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi vs .State of Madras and Anr., reported in : [1965]3SCR17 . In that case, it was observed that if any of the ingredient is not mentioned in the petition but pleaded in rejoinder affidavit and the respondent had full notice of the same, then petition cannot be rejected. The decision of the Apex Court was followed by this court in the case of Man mohan Mehra vs J.S. Butalia reported in : AIR1984Delhi32 .
(18) Moreover, the petitioner ought to have sought for the rejection of the petition for non-disclosure of cause of action at the earliest. If the petitioner had raised this objection before the trial court, it would have given opportunity to the land-lord to either amend the petition or withdraw the same. Having not done so,it would a mount to waiving of this ground. Such a plea can not be permitted to be raised at the revision stage.Reliance can be placed on the decision of the Supreme Court in the case of N.Jayaram Reddi & Anr. (Supra)
(19) In the present case, not only the pleadings were understood by the parties, even the tenancy agreement formed part of the eviction petition. Clause 5 of the said agreement dated 6.4.1978 which is reproduced as under clearly stipulates that the premises was let out turn residential purpose.
'5.That the Lessee shall use the premises for residential purpose only and the Lessee shall not sublet the said premises in part or full to anybody else.'
(20) In reply to para 14 of the petition, the tenant in his written statement admitted the execution of the lease agreement dated 6.4.1978. The admission of lease agreement also find mention in ground 'B' of the application, filed by the tenant, seeking leave to defend. In the said ground, he admitted that the property in question was leased to him vide agreement dated 6.4.78 commencing from 10.4.1978. Since the lease agreement formed part of the petition, thereforee, in order to ascertain the letting purpose, it could be looked into as letting purpose is only a collateral purpose.
(21) In the cases relied by Mr. Lekhi namely Dr. Mrs. N.D.Kanan, Mr. Edwin Brave and Radha Mohan, the tenant had raised the objection about the maintainability of the petition at the first available opportunity. This objection was taken either in the written statement or ill the leave to defend application. Hence the observation in those cases are of no help to the petitioner because he never look this plea before the trial court. Moreover the view expressed in those cases was distinguished in subsequent cases of this court, namely, Man mohan Mehra (Supra), Arvind Berry V. Admiral A.P.S. bindra (Supra), and Rup Chand V. Shanti Devi reported in : 32(1987)DLT269 .
(22) This Court had repeatedly held that even where in the petition, it has only been mentioned that the premises let to the tenant is residential and is begging used for residence, it would mean that the same was let for residential purpose. The Supreme Court in the case of N.Jayaram Reddy & Others (Supra) did not allow the plea of abetment at appellate stage rather held it stood abundoned. The principle behind these decisions is that, had the tenant taken this plea at the earliest, the land-lord would have the opportunity to either withdraw the petition or amend the same. Tenant cannot be permitted to take advantage of his own ommussions.
(23) So far as the question of specific pleadings in this regard are concerned, to my mind, in view of the material facts being known to each parly, the petition can not be rejected for non-writing specifically the letting purpose. The observation of the Supreme Court in the cases of Mithlesh Kumar (Supra), Madhav Rao Seindia (Supra) are not attracted to the facts of this case. In those cases, Supreme Court was dealing with election petitions filed under Presidential and Vice-Presidential Election Act and under the Representation of People's Act. The Supreme Court, in the case of Basanagonda vs. Dr. S.B. Amarkhed & Others, reported in : [1992]2SCR397 observed that 'At the same lime, the election petition proceedings being of quasi-criminal nature, the allegations in the petition must be pleaded clearly and with full particulars.' In the absence of full particulars, petition cannot be permitted to be filed on the basis of incomplete pleadings. Grounds in the election petition are fraud, corruption, undue influence, coercion etc. Hence, not only it has to be averred that fraud has been committed in fact specific instances are to be mentioned in the petition so that respondent cannot be taken by surprise while evidence is being recorded. This strict rule of pleadings will not apply to a petition under the Delhi Rent Control Act because Civil Procedure Code does not strictly apply to these pleadings.
(24) Now, so far as merits are concerned, the learned Addl. Rent Controller took note of the evidence adduced before her and came to the conclusion that premises in question was let for residential purpose. Even otherwise when a tenant uses the premises for receiving his business Dak or correspondence it would not make the use as commercial. The Addl. Rent Controller rightly concluded that merely because the tenant had given his address turn correspondence purpose in Sales Tax Department and/ or for business purpose, it would not change the letting purpose to non-residential. The land underneath the house was taken by the landlord on perpetual lease hold basis. The perpetual lease-deed Ex.AW1/l prohibits the user of the building constructed on the plot or for trade or business. Coupled with this document is the statement of tenant's son RW-2,who deposed that the premises was never used for commercial purpose. This fact further find support from clause 5 of the lease agreement Ex.AW-l/3 where in it has been mentioned that the premises was let out for residential purpose only. The said rent agreement formed part of the pleadings and has been admitted by the tenant. Therfore, the terms of the said unregistered agreement Ex.AW-l/3 can be looked into to find out the purpose of letting because that is only a collateral purpose. In tact the nature, character and user of possession, being not a term of the lease is a collateral purpos, hence can be looked into even if the lease deed is unregistered, in order to find out the purpose of letting. Under the proviso to Section 49 of the Registration Act, purpose of lease i.e. nature of tenant's possession being only a collateral matter, unregistered lease can he used to determine the same. Letting purpose is not a term of the lease deed. It is only the terms of the lease which cannot be looked into in an unregistered lease deed. The essential elements of the lease are (i) the parties; (ii)the subject matter or immoveable property; (iii) the demise or partial transfer; (iv) the term or period; (v) the consideration or rent. But the nature and character of possession does not. fall in the category of essential elements. It is distinct from the main purpose of the lease. Hence the unregistered lease deed can be looked into to find out the letting purpose. The supreme Court in the case of Rai Chand Jain (Supra) has removed all doubts in this regard. Mr.Lekhi contended that the observations of the Supreme Court in Rai Chand Jain's case regarding unregistered lease deed are only obiter, hence not binding. To my mind, it is without force. In view of the documentary evidence and admission of RW-2, no amount of oral evidence by the tenant that premises was let for residential-cum-commercial purpose can be relied. Even otherwise the letting purpose can he determined from the nature of the premises,locality where it is situated, extent of (he accommodation with the tenant and the purpose for which the land was purchased and building plan got sanctioned etc. The mere fact that the premises is incidently used by the tenant for receipt of his business Dak or for correspondence purposes with Sales Tax Deptt, or other authorities where he has given this as his address, would not change the user from residential to commercial. Premises in question is a three bed rooms accommodation. Tenant has beside himself, a married son and two unmarried daughters of the age of '21 and 18 years respectively. Looking at these facts the Arc rightly concluded that the premises was let for residential purpose.
(25) Moreover, beside the statement of RW-2 (son of the leant) the tenant in his leave to defend application admitted that predominant purpose of letting was residence of Mrs. Manorama Vaid, proprietor of 'M/s Keshav Metal Works. She could, of course, use it for any other purpose. For what other purpose it could be used, has been stated by RW- 2 i.e.for maintain her personal office and for exchange of correspondence. This, to my mind, will not change the purpose from residential to commercial. As regard Mr.Lekhi's objection about two numbers of a premises, to my mind, that will not entail rejection of the petition. Addl. Rent Controller has rightly concluded that this part of tenant's evidence cannot be considered as it was beyond pleadings. Mr.Lekhi cannot draw comparison between lack of pleadings in his written statement about this premises having two numbers with the pleadings of the landlord. As observed above the landlord in bids pleadings made it clear, and it was so understood by the tenant, that the premises was let for residential purpose. In this view of the matter none of the objections raised by the petitioner has any merits.
(26) For the aforesaid reasons I find no merits in this petition, the same is accordingly dismissed. Parties are left bear their own costs.