Surajit Banerjee and anr. Vs. Baidya Nath Pramanick - Court Judgment

SooperKanoon Citationsooperkanoon.com/886486
SubjectProperty
CourtKolkata High Court
Decided OnAug-12-2005
Case NumberS.A. No. 63 of 2003
JudgeJoytosh Banerjee, J.
Reported inAIR2006Cal145
ActsEvidence Act, 1872 - Sections 60, 91 and 92; ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 27
AppellantSurajit Banerjee and anr.
RespondentBaidya Nath Pramanick
Appellant AdvocateP.B. Sahoo and ;Afroze Alam, Advs.
Respondent AdvocateRabindranath Mahato, ;Jayeeta Chakraborty and ;Basha Mir, Advs.
DispositionAppeal dismissed
Cases ReferredRs. v. Bishun Narain Inter
Excerpt:
- joytosh banerjee, j.1. the present appeal is at the instance of the defendant and it is directed against judgment dated 31.7.2001 and the decree thereof passed by the civil judge, (sr. division), 4th court, alipore, in the district of 24-parganas(s). the learned appellate court below decreed the suit, reversing the judgment of the trial court by which such court dismissed the suit.2. the plaintiff filed t.s. no. 31/90 alleging, inter alia, that the suit property originally belonged to the father of the plaintiff sanyasi charan pramanik who executed and registered a deed of family settlement whereby he created a trust in respect of the suit property. the said original owner with his wife became the joint trustees. it was provided that after their death, the property would vest absolutely upon the three sons of the trustees as provided in the deed of settlement. mother of the plaintiff died on 17.8.82 and his father died on 10.8.83, after the death of both the trustees, the plaintiff became the sole and absolute owner of lot 'a' wherein defendant was a tenant in respect of a portion more fully described in the schedule of the plaint, at a rental of rs. 60/-per month payable according to english calendar and on the death of both the trustees, the tenancy of the defendant was duly attorned and such defendant started paying rent to the plaintiff month by month. it was further alleged that the plaintiff reasonably required the suit premises for his own use and occupation as the plaintiff with his family was actually residing in a room allotted to his younger brother, as his licensee. the said younger brother was pressing hard to the plaintiff to vacate the room for his own accommodation. under such circumstances, the plaintiff badly required the suit premises for his own use and occupation. it was further alleged that the plaintiff had no other suitable accommodation elsewhere. for the aforesaid reason, the plaintiff sent a notice dated 30.10.89 by registered post with a d terminating the tenancy of the defendant on the expiry of the month of december, 1989. such notice was returned with a postal endorsement 'refused' on its cover. in this way, the said notice was served upon the defendant/tenant but in spite of such notice, the defendant did not vacate the suit premises and in that background, the plaintiff was constrained to file the suit.3. the defendant contested the suit on a written statement denying all material allegations. it was further contended that the plaintiff in order to evict the original tenant/defendant cooked up a false story of requirement including the allegation of living as a licensee under his younger brother.4. the learned trial court as noticed by the appellate court below dismissed the suit mainly on the ground that the plaintiff had failed to show his reasonable requirement by holding any local inspection. against such decree of dismissal, the title appeal was preferred and the first appellate court allowed local inspection on the prayer of the plaintiff/appellant. the advocate commissioner who held the local inspection was also examined on behalf of the plaintiff/appellant. in the appellate stage, the plaintiff himself was examined on being recalled and the learned appellate court below considered the further evidence adduced on behalf of the plaintiff asserting that he never made any construction on the first floor as per allotment in his favour and that he got 4 rooms as the allottee of lot 'a' and out of those 4 rooms one room was in his possession. two rooms were in possession of one ajoy sil and one room was in possession of the original tenant/defendant haradhan banerjee. the learned appellate court also noted in its judgment that through the further evidence, the defendant deposed that at the time of decree there were 5 rooms with tile shed on the first floor. but at the time of hearing of the appeal, those rooms were not in existence. on 11.3.93 those rooms on the first floor were demolished by the plaintiff appellant. the defendant lodged g.d. with watgunge p.s. over that incident and the defendant got the receipt (in connection with the making of the g.d.) marked as exhibit. the defendant claimed in his evidence that there was no tenant by the name of ajoy sil and the plaintiff was in possession of those rooms in the ground floor of the suit premises. the learned appellate court below further noted, the evidence adduced by the advocate commissioner in the cross-examination indicating that one ajoy kr. sil was a tenant in respect of the two rooms in lot 'a' and from ext. 11, the inspection report it appeared to such court that the plaintiff/appellant was in occupation of one kitchen room with tile shed measuring 6.5' x 11 ft -with covered verandah. the learned appellate court after taking into consideration, the entire evidence came to a conclusion, that at the time of his consideration, there was no room on the first floor of the building in lot 'a' and from the report of the commissioner there was one tenant ajoy sil who was occupying one northern side room in the ground floor as a tenant of the plaintiff. ultimately, the learned appellate court below came to the final conclusion that the plaintiff through the evidence could establish his case of reasonable requirement and on such a finding reversed the judgment of dismissal and decreed the suit directing the defendant/respondent to vacate the suit premises within 60 days from the date of decree.5. being aggrieved by such judgment and decree, the defendant has come up before this court in appeal. at the time of admission of the appeal, the learned division bench by the order dated 9.1.2003 indicated the following grounds as substantial questions of law involved in the present appeal:(i) whether the appellate court had the authority or jurisdiction to take additional evidence on a fact, which was not pleaded in the plaint and when the plaint was not amended at all;(ii) whether the courts below erred in law substantially by not holding that the plaintiffs were already in occupation of reasonable accommodation;(iii) whether the courts below erred in law by not properly considering the provisions under sections 91 and 92 of the evidence act;(iv) whether the judgment of the court of appeal below was a proper judgment of reversal or not.6. learned counsel for the appellant has submitted that the appellate court below, improperly allowed the application under order 41 rule 27, civil procedure code. it is further submitted that appellate court in its judgment noted that inspection by the commissioner was held under the order of the high court. but it is submitted that the said observation was not based on record. it is the contention of the learned advocate that as the additional evidence on a material point was taken without the jurisdiction, therefore, no decision can be taken on the basis of the report of the commissioner ext. 11. it is further contended that an application under order 41 rule 27 could not be filed for patching up weak point of the case by the plaintiff. it is further contended that if at all the appellate court really required the further evidence, for reaching at a decision as observed by such court, then such application could have been considered at the time of hearing of the appeal and not before it.7. on the other hand, it is contended by the learned counsel for the respondent that para-4 of the plaint, the plaintiff sufficiently described the case of reasonable requirement. the plaintiff also disclosed that he had no suitable accommodation and that was sufficient. it is further contended that when issues had been framed and when the parties led evidence on such issues, in that background, the appellate court below did not commit any error. it is further contended that the question at issue boils down whether the material collected by the commissioner can be used to answer the question at issue, touching the question of reasonable requirement. in support of his contention that no evidence can be adduced to fill up the lacuna in the pleadings, the learned counsel for the defendant/appellant has referred the case of siddik mohammed shah v. mt. saren and ors., reported in . wherein it was held that no amount of evidence could be looked into upon a plea, which was never put forward. the learned counsel has also referred the case of n. kamalam (dead) and anr. v. ayyasamy and anr., reported in : air2001sc2802 . in support of his contention that the provisions of order 41 rule 27 have not been engrafted in the code so as to patch up the weak points in the case and to fill up the omission in the court of appeal.8. the learned counsel for the respondent on the other hand has placed his reliance on the judgment of learned single bench of this court in the case of dulal chandra biswas and ors. v. sailendra nath sadhukhan andors. reported in 2003 cwn 634. wherein the learned judge noted that in the case before him, the question was whether the plaintiff had any other reasonable accommodation other than the suit premises. that question was issue no. 5 without any objection and the parties led evidence in support of such issue. therefore, the learned trial judge erred in law in refusing to go into the aforesaid question on the ground of absence of plea of non-availability of other reasonably suitable accommodation in the plaint at the time of hearing when the court itself framed such issue. it was further held at the stage of framing issue, the court framed issue then the plaintiffs could amend their plaint by incorporating such plea. that apart, that point no. b touching the question whether the landlord reasonably required the suit premises for his own use and occupation was very much related with point no. c touching the question whether the landlord had no other reasonably suitable accommodation or not. therefore, in such a suit, the court having framed issue no. 5 and the parties having led evidence, there was no ground of refusal to answer such issue.9. having heard the learned counsel for both sides in this way and on going through the matter in issue very carefully i find that the instant appeal, the only substantial question of law on which the decision of the present appeal much depends is whether in the facts and circumstances of the case, the appellate court below acted legally in allowing further evidence in respect of certain circumstances beyond the pleading. in the case of ram sarup gupta (dead) by lrs. v. bishun narain inter-college andors. reported in 0043/1987 : [1987]2scr805 , the apex court in para-6 of such reported judgment made the following observation, which would be material in deciding the question noted above:the question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by section 60(b) of the act and, if so, is there any evidence on that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. it is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. the object and purpose of pleading is to enable the adversary party to know the case it has to meet. in order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. the pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair splitting technicalities. sometimes, pleadings are expressed in words, which may not expressly make out a case in accordance with strict interpretation of law, in such a case is the duty of the court to ascertain the substance of the pleadings to determine the question. it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. in bhagwati prasad v.chandramaul : [1966]2scr286 , a constitution bench of this court considering this question observed (at p. 738 of air):if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. the general rule no doubt is that the relief should be founded on pleadings made by the parties. but where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. what the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? if it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. to allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another. 10. therefore, it is well-settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. it is also settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it and the object of such rule is that adversary party should know the case it has to meet. in the instant case from the plaint, it transpires that regarding reasonable requirement, the ground taken for eviction of the tenant, the plaintiff used the following words in paragraph-4 of the plaint:the plaintiff reasonably required the suit premises for his own use and occupation. the plaintiff is now actually residing in a room allotted to his younger brother as his licensee. the said younger brother is now pressing hard to the plaintiff to vacate the room in his accommodation. under such circumstances, the plaintiff badly required the suit premises for his own use and occupation. the plaintiff has no other suitable accommodation elsewhere.besides this specific pleading, the plaintiff has not pleaded any other thing in the plaint. the defendant in the written statement has only stated that the plaintiff cooked up this story for the purpose of evicting the defendant. on the basis of such pleadings one issue has been framed, which is hereunder:(3) does the plaintiff reasonably required the suit premises for his own use and occupation, and has the plaintiff any other reasonably suitable accommodation elsewhere.in the evidence, the plaintiff disclosed that (page-4 of the evidence recorded in bengali) that his family consisted of himself, his wife and one daughter aged about 8 years and he was presently residing in one room of the portion of the house which fell in the allotment of his younger brother. he has further stated that he has got no room in his possession in lot. 'a' which fell, in his share. p.w.2 who is the brother of the plaintiff corroborated the testimony of the plaintiff by stating that the plaintiff with his aforesaid family was residing in one room in lot 'c' which fell in the share of the witness. in cross-examination, the plaintiff as p.w. 1 stated that he required two rooms but he presently stayed in one room of his brother. only a suggestion was given to the plaintiff that his present accommodation was more than what he required. in this way, i find that the specific assertion of the plaintiff on the two relevant points, namely, that there was no further accommodation in the lot 'a' that is to say, the portion allotted to him through the deed, was never challenged on behalf of the defendant and further that the plaintiff was staying in the room which fell in the allotment of his brother. there is no dispute that plaintiff had no right to stay in the portion (lot 'c') which fell in the share of his brother. in the pleading, the plaintiff specifically noted that he had no other suitable accommodation. all these go to show that in the facts and circumstances of the case, the pleadings should receive a liberal construction so that the justice should not be defeated on technicalities. the plaint and written statement along with evidence adduced by both sides before the trial court would sufficiently indicate that the defendant knew the real contention of the plaintiff regarding his case of requirement of the suit room and through the evidence, the defendant tried to resist prayer only on the ground that the present accommodation of the plaintiff was a suitable accommodation. but the evidence on record goes to show that plaintiff was residing as a mere licensee of his brother in a room, which fell in the portion, allotted to his brother. it goes without any doubt that possession of a licensee cannot be compared with the possession of a owner and therefore the owner of a house or a portion of the house cannot be compelled to continue to stay as a licensee under his brother. in that background, i further find that the learned first appellate court did not adopt any erroneous procedure by allowing an application for additional evidence in the appellate court, it has been contended on behalf of the appellant that if the appellate court allowed the application on the ground that it required such evidence to enable it to pronounce judgment, then such application should have been heard along with the appeal and it should not be decided prior to hearing of the appeal. it is well-settled that the true test for allowing an application under the aforesaid ground is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. but there is no bar in examining that question while disposing the application even prior to the hearing of the appeal. it is equally true that in most of the cases unless the appeal is taken up for hearing, it is difficult for the court to come to a decision on this point. but in the instant case, the question was whether for the purpose of deciding the question of reasonable requirement of the plaintiff, some further evidence was required by the appellate court and that question, the appellate court decided on going through the judgment passed by the trial court by which it dismissed the suit for want of some material evidence. before i part with the matter i must point out that one of the substantial questions of law which has been formulated for decision in this appeal is whether the courts below erred in law by not properly considering the provision of sections 91 and 92 of the evidence act:section 91. provides that the contents of a document that when the terms of a contract, grant or any disposition of the property have been reduced to the form of a document or where any matter is required by law to be reduced to the form of a document then no evidence should be given in proof of those matters except the document itself, or the secondary evidence of its contents.section 92. of the evidence act enacts that when the terms of all contracts, grant or other disposition of property are reduced into writing, whether or not such contract or grant is compulsorily required to be reduced into writing and registered, no oral evidence shall be admitted to contradict, vary, add to or substract from its terms.in the instant case, i must note down before proceeding further that in respect of section 91, it is the contention of the appellant, that the deed with sketch map clearly describes, the specific portion lot 'a' which fell in the share of the plaintiff and therefore there was no further scope for the plaintiff to adduce any evidence contrary to what has been written or shown in the sketch map. the learned advocate for the respondent has submitted that through exception 3 to section 91 of the evidence act, the plaintiff may give oral evidence how he was using the property. it has been stated that the rooms fell in the share of the plaintiff as per the deed were not suitable for residence of the plaintiff. i find much substance behind the argument of the learned advocate for the respondent; the deed in question did not clearly describe the nature or extent of the different lots, which fell in the share of the plaintiff and his brothers. only the sketch map attached to the deed gives some idea about the rooms. but such sketch map did not indicate the measurement, condition etc. of the rooms shown in sketch map and therefore in my considered opinion, the plaintiff can lead evidence to clarify the matter under the aforesaid exception to section 91 of the evidence act.11. thus i find that in the facts and circumstances of the case, the learned appellate court, had the jurisdiction to take additional evidence on a fact, which was not pleaded in the plaint, but where both parties understood and led evidence. further plaintiffs occupation as a licensee cannot be held to be a reasonable accommodation in the eye of law and the appellate court considered the question in issue in conformity with the provisions contained in sections 91 and 92 of the evidence act and the judgment passed by such court is also a proper judgment pf reversal on consideration of the materials before it.12. thus i find that the present appeal must fail. accordingly, it is dismissed. but having regard to the facts and circumstances i make no order as to costs.the judgment and decree passed by the appellate court below are hereby affirmed.
Judgment:

Joytosh Banerjee, J.

1. The present appeal is at the instance of the defendant and it is directed against judgment dated 31.7.2001 and the decree thereof passed by the Civil Judge, (Sr. Division), 4th Court, Alipore, in the District of 24-Parganas(S). The learned Appellate Court below decreed the suit, reversing the judgment of the Trial Court by which such Court dismissed the suit.

2. The plaintiff filed T.S. No. 31/90 alleging, inter alia, that the suit property originally belonged to the father of the plaintiff Sanyasi Charan Pramanik who executed and registered a deed of family settlement whereby he created a trust in respect of the suit property. The said original owner with his wife became the joint trustees. It was provided that after their death, the property would vest absolutely upon the three sons of the trustees as provided in the deed of settlement. Mother of the plaintiff died on 17.8.82 and his father died on 10.8.83, After the death of both the trustees, the plaintiff became the sole and absolute owner of Lot 'A' wherein defendant was a tenant in respect of a portion more fully described in the schedule of the plaint, at a rental of Rs. 60/-per month payable according to English calendar and on the death of both the trustees, the tenancy of the defendant was duly attorned and such defendant started paying rent to the plaintiff month by month. It was further alleged that the plaintiff reasonably required the suit premises for his own use and occupation as the plaintiff with his family was actually residing in a room allotted to his younger brother, as his licensee. The said younger brother was pressing hard to the plaintiff to vacate the room for his own accommodation. Under such circumstances, the plaintiff badly required the suit premises for his own use and occupation. It was further alleged that the plaintiff had no other suitable accommodation elsewhere. For the aforesaid reason, the plaintiff sent a notice dated 30.10.89 by registered post with A D terminating the tenancy of the defendant on the expiry of the month of December, 1989. Such notice was returned with a postal endorsement 'refused' on its cover. In this way, the said notice was served upon the defendant/tenant but in spite of such notice, the defendant did not vacate the suit premises and in that background, the plaintiff was constrained to file the suit.

3. The defendant contested the suit on a written statement denying all material allegations. It was further contended that the plaintiff in order to evict the original tenant/defendant cooked up a false story of requirement including the allegation of living as a licensee under his younger brother.

4. The learned Trial Court as noticed by the Appellate Court below dismissed the suit mainly on the ground that the plaintiff had failed to show his reasonable requirement by holding any local inspection. Against such decree of dismissal, the title appeal was preferred and the First Appellate Court allowed local inspection on the prayer of the plaintiff/appellant. The Advocate Commissioner who held the local inspection was also examined on behalf of the plaintiff/appellant. In the appellate stage, the plaintiff himself was examined on being recalled and the learned Appellate Court below considered the further evidence adduced on behalf of the plaintiff asserting that he never made any construction on the first floor as per allotment in his favour and that he got 4 rooms as the allottee of Lot 'A' and out of those 4 rooms one room was in his possession. Two rooms were in possession of one Ajoy Sil and one room was in possession of the original tenant/defendant Haradhan Banerjee. The learned Appellate Court also noted in its judgment that through the further evidence, the defendant deposed that at the time of decree there were 5 rooms with tile shed on the first floor. But at the time of hearing of the appeal, those rooms were not in existence. On 11.3.93 those rooms on the first floor were demolished by the plaintiff appellant. The defendant lodged G.D. with Watgunge P.S. over that incident and the defendant got the receipt (in connection with the making of the G.D.) marked as exhibit. The defendant claimed in his evidence that there was no tenant by the name of Ajoy Sil and the plaintiff was in possession of those rooms in the ground floor of the suit premises. The learned Appellate Court below further noted, the evidence adduced by the Advocate Commissioner in the cross-examination indicating that one Ajoy Kr. Sil was a tenant in respect of the two rooms in Lot 'A' and from Ext. 11, the inspection report it appeared to such Court that the plaintiff/appellant was in occupation of one kitchen room with tile shed measuring 6.5' x 11 ft -with covered verandah. The learned Appellate Court after taking into consideration, the entire evidence came to a conclusion, that at the time of his consideration, there was no room on the first floor of the building in Lot 'A' and from the report of the Commissioner there was one tenant Ajoy Sil who was occupying one northern side room in the ground floor as a tenant of the plaintiff. Ultimately, the learned Appellate Court below came to the final conclusion that the plaintiff through the evidence could establish his case of reasonable requirement and on such a finding reversed the judgment of dismissal and decreed the suit directing the defendant/respondent to vacate the suit premises within 60 days from the date of decree.

5. Being aggrieved by such judgment and decree, the defendant has come up before this Court in appeal. At the time of admission of the appeal, the learned Division Bench by the order dated 9.1.2003 indicated the following grounds as substantial questions of law involved in the present appeal:

(i) Whether the Appellate Court had the authority or jurisdiction to take additional evidence on a fact, which was not pleaded in the plaint and when the plaint was not amended at all;

(ii) Whether the Courts below erred in law substantially by not holding that the plaintiffs were already in occupation of reasonable accommodation;

(iii) Whether the Courts below erred in law by not properly considering the provisions under Sections 91 and 92 of the Evidence Act;

(iv) Whether the judgment of the Court of Appeal below was a proper judgment of reversal or not.

6. Learned Counsel for the appellant has submitted that the Appellate Court below, improperly allowed the application under Order 41 Rule 27, Civil Procedure Code. It is further submitted that Appellate Court in its judgment noted that inspection by the Commissioner was held under the order of the High Court. But it is submitted that the said observation was not based on record. It is the contention of the learned Advocate that as the additional evidence on a material point was taken without the jurisdiction, therefore, no decision can be taken on the basis of the report of the Commissioner Ext. 11. It is further contended that an application under Order 41 Rule 27 could not be filed for patching up weak point of the case by the plaintiff. It is further contended that if at all the Appellate Court really required the further evidence, for reaching at a decision as observed by such Court, then such application could have been considered at the time of hearing of the appeal and not before it.

7. On the other hand, it is contended by the learned Counsel for the respondent that para-4 of the plaint, the plaintiff sufficiently described the case of reasonable requirement. The plaintiff also disclosed that he had no suitable accommodation and that was sufficient. It is further contended that when issues had been framed and when the parties led evidence on such issues, in that background, the Appellate Court below did not commit any error. It is further contended that the question at issue boils down whether the material collected by the Commissioner can be used to answer the question at issue, touching the question of reasonable requirement. In support of his contention that no evidence can be adduced to fill up the lacuna in the pleadings, the learned Counsel for the defendant/appellant has referred the case of Siddik Mohammed Shah v. Mt. Saren and Ors., reported in . Wherein it was held that no amount of evidence could be looked into upon a plea, which was never put forward. The learned Counsel has also referred the case of N. Kamalam (dead) and Anr. v. Ayyasamy and Anr., reported in : AIR2001SC2802 . In support of his contention that the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal.

8. The learned Counsel for the respondent on the other hand has placed his reliance on the judgment of learned Single Bench of this Court in the case of Dulal Chandra Biswas and Ors. v. Sailendra Nath Sadhukhan andOrs. reported in 2003 CWN 634. Wherein the learned Judge noted that in the case before him, the question was whether the plaintiff had any other reasonable accommodation other than the suit premises. That question was issue No. 5 without any objection and the parties led evidence in support of such issue. Therefore, the learned Trial Judge erred in law in refusing to go into the aforesaid question on the ground of absence of plea of non-availability of other reasonably suitable accommodation in the plaint at the time of hearing when the Court itself framed such issue. It was further held at the stage of framing issue, the Court framed issue then the plaintiffs could amend their plaint by incorporating such plea. That apart, that point No. B touching the question whether the landlord reasonably required the suit premises for his own use and occupation was very much related with point No. C touching the question whether the landlord had no other reasonably suitable accommodation or not. Therefore, in such a suit, the Court having framed issue No. 5 and the parties having led evidence, there was no ground of refusal to answer such issue.

9. Having heard the learned Counsel for both sides in this way and on going through the matter in issue very carefully I find that the instant appeal, the only substantial question of law on which the decision of the present appeal much depends is whether in the facts and circumstances of the case, the Appellate Court below acted legally in allowing further evidence in respect of certain circumstances beyond the pleading. In the case of Ram Sarup Gupta (dead) by LRs. v. Bishun Narain Inter-College andOrs. reported in 0043/1987 : [1987]2SCR805 , the Apex Court in para-6 of such reported judgment made the following observation, which would be material in deciding the question noted above:

The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words, which may not expressly make out a case in accordance with strict interpretation of law, in such a case is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v.Chandramaul : [1966]2SCR286 , a Constitution Bench of this Court considering this question observed (at P. 738 of AIR):If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.

10. Therefore, it is well-settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it and the object of such rule is that adversary party should know the case it has to meet. In the instant case from the plaint, it transpires that regarding reasonable requirement, the ground taken for eviction of the tenant, the plaintiff used the following words in paragraph-4 of the plaint:

The plaintiff reasonably required the suit premises for his own use and occupation. The plaintiff is now actually residing in a room allotted to his younger brother as his licensee. The said younger brother is now pressing hard to the plaintiff to vacate the room in his accommodation. Under such circumstances, the plaintiff badly required the suit premises for his own use and occupation. The plaintiff has no other suitable accommodation elsewhere.

Besides this specific pleading, the plaintiff has not pleaded any other thing in the plaint. The defendant in the written statement has only stated that the plaintiff cooked up this story for the purpose of evicting the defendant. On the basis of such pleadings one issue has been framed, which is hereunder:

(3) Does the plaintiff reasonably required the suit premises for his own use and occupation, and has the plaintiff any other reasonably suitable accommodation elsewhere.

In the evidence, the plaintiff disclosed that (page-4 of the evidence recorded in Bengali) that his family consisted of himself, his wife and one daughter aged about 8 years and he was presently residing in one room of the portion of the house which fell in the allotment of his younger brother. He has further stated that he has got no room in his possession in Lot. 'A' which fell, in his share. P.W.2 who is the brother of the plaintiff corroborated the testimony of the plaintiff by stating that the plaintiff with his aforesaid family was residing in one room in Lot 'C' which fell in the share of the witness. In cross-examination, the plaintiff as P.W. 1 stated that he required two rooms but he presently stayed in one room of his brother. Only a suggestion was given to the plaintiff that his present accommodation was more than what he required. In this way, I find that the specific assertion of the plaintiff on the two relevant points, namely, that there was no further accommodation in the Lot 'A' that is to say, the portion allotted to him through the deed, was never challenged on behalf of the defendant and further that the plaintiff was staying in the room which fell in the allotment of his brother. There is no dispute that plaintiff had no right to stay in the portion (Lot 'C') which fell in the share of his brother. In the pleading, the plaintiff specifically noted that he had no other suitable accommodation. All these go to show that in the facts and circumstances of the case, the pleadings should receive a liberal construction so that the justice should not be defeated on technicalities. The plaint and written statement along with evidence adduced by both sides before the Trial Court would sufficiently indicate that the defendant knew the real contention of the plaintiff regarding his case of requirement of the suit room and through the evidence, the defendant tried to resist prayer only on the ground that the present accommodation of the plaintiff was a suitable accommodation. But the evidence on record goes to show that plaintiff was residing as a mere licensee of his brother in a room, which fell in the portion, allotted to his brother. It goes without any doubt that possession of a licensee cannot be compared with the possession of a owner and therefore the owner of a house or a portion of the house cannot be compelled to continue to stay as a licensee under his brother. In that background, I further find that the learned First Appellate Court did not adopt any erroneous procedure by allowing an application for additional evidence in the Appellate Court, It has been contended on behalf of the appellant that if the Appellate Court allowed the application on the ground that it required such evidence to enable it to pronounce judgment, then such application should have been heard along with the appeal and it should not be decided prior to hearing of the appeal. It is well-settled that the true test for allowing an application under the aforesaid ground is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. But there is no bar in examining that question while disposing the application even prior to the hearing of the appeal. It is equally true that in most of the cases unless the appeal is taken up for hearing, it is difficult for the Court to come to a decision on this point. But in the instant case, the question was whether for the purpose of deciding the question of reasonable requirement of the plaintiff, some further evidence was required by the Appellate Court and that question, the appellate Court decided on going through the judgment passed by the Trial Court by which it dismissed the suit for want of some material evidence. Before I part with the matter I must point out that one of the substantial questions of law which has been formulated for decision in this appeal is whether the Courts below erred in law by not properly considering the provision of Sections 91 and 92 of the Evidence Act:

Section 91. Provides that the contents of a document that when the terms of a contract, grant or any disposition of the property have been reduced to the form of a document or where any matter is required by law to be reduced to the form of a document then no evidence should be given in proof of those matters except the document itself, or the secondary evidence of its contents.

Section 92. Of the Evidence Act enacts that when the terms of all contracts, grant or other disposition of property are reduced into writing, whether or not such contract or grant is compulsorily required to be reduced into writing and registered, no oral evidence shall be admitted to contradict, vary, add to or substract from its terms.

In the instant case, I must note down before proceeding further that in respect of Section 91, it is the contention of the appellant, that the deed with sketch map clearly describes, the specific portion Lot 'A' which fell in the share of the plaintiff and therefore there was no further scope for the plaintiff to adduce any evidence contrary to what has been written or shown in the sketch map. The learned Advocate for the respondent has submitted that through Exception 3 to Section 91 of the Evidence Act, the plaintiff may give oral evidence how he was using the property. It has been stated that the rooms fell in the share of the plaintiff as per the deed were not suitable for residence of the plaintiff. I find much substance behind the argument of the learned Advocate for the respondent; the deed in question did not clearly describe the nature or extent of the different Lots, which fell in the share of the plaintiff and his brothers. Only the sketch map attached to the deed gives some idea about the rooms. But such sketch map did not indicate the measurement, condition etc. of the rooms shown in sketch map and therefore in my considered opinion, the plaintiff can lead evidence to clarify the matter under the aforesaid Exception to Section 91 of the Evidence Act.

11. Thus I find that in the facts and circumstances of the case, the learned Appellate Court, had the jurisdiction to take additional evidence on a fact, which was not pleaded in the plaint, but where both parties understood and led evidence. Further plaintiffs occupation as a licensee cannot be held to be a reasonable accommodation in the eye of law and the Appellate Court considered the question in issue in conformity with the provisions contained in Sections 91 and 92 of the Evidence Act and the judgment passed by such Court is also a proper judgment pf reversal on consideration of the materials before it.

12. Thus I find that the present appeal must fail. Accordingly, it is dismissed. But having regard to the facts and circumstances I make no order as to costs.

The judgment and decree passed by the Appellate Court below are hereby affirmed.