Saturday, 9 November 2019

When court can rely on evidence adduced by a party without pleading?

What is relevant to note is that at no point of time any objection was taken by the petitioners for adduction of this evidence being outside the pleading. In other words, it was allowed to be let in . The parties had obviously understood each others case very well. What is striking in this case is that though the above said case was made during the evidence by the plaintiff, but there is absolutely no cross-examination on this aspect. The inevitable consequence of that is that the defendants have virtually conceded the case set out by the plaintiff relating to the factum of her reasonable and bona fide requirement as has come during the evidence. It is not possible for this Court to find out reason as to why there was no cross-examination on this material aspects. Suffice it to note that the conclusion reached by the Appellate Court while answering the issue of reasonable and bona fide requirement in favour of the respondent, therefore, cannot be doubted.

In the fact situation of this case I have no hesitation in rejecting the grievance made by the petitioners that there was absolutely no pleading or no evidence adduced to establish the factum of bona fide and reasonable requirement. Reliance is placed by the Counsel for the petitioners on the decisions reported in MANU/MH/0165/1975 : 1974 Mh.L.J. 774 and MANU/MH/0432/1979 : 1979 Mh.L.J. 545 and MANU/SC/0532/1999 : AIR1999SC3190 , (supra) contending that it is obligatory on the part of the landlord to set out the need in the plaint, failing to do so no decree can be passed in favour of the landlord. To my mind, these decisions are clearly distinguishable ones. In as much as, in the decision reported in MANU/MH/0165/1975 : 1974 Mh.L.J. 774 in paragraph No. 4 thereof, the Court has noted that there was absolutely no details in the application as to whether the premises were required for his residence or for his business or for godown or for any other purpose. Besides even in the evidence nothing was brought on record. That is not the case at hand. In the present case, clear assertion has been made that the premises are required for residence of the plaintiff and for her family members and evidence in support of that plea is adduced. Even the decision reported in MANU/MH/0432/1979 : 1979 Mh.L.J. 545 would be of no avail as that decision has followed the principle enunciated in the earlier decision of this Court referred to above. Much reliance was placed on the decision of the Apex Court in T. Sivasubramaniam case (supra) to contend that mere desire of the landlord was not sufficient to accept the claim of bona fide and reasonable requirement. Relying on paragraph No. 4 of the said judgment it is argued that the landlord must set out his need in its petition and establish that such a need is bona fide. As observed earlier, in the present case the plaintiff has clearly pleaded about the need in the plaint and has also adduced evidence in support of her case during the trial. May be further details have come on record during the evidence which were not specifically pleaded. However, to my mind, the present case would be governed by the principle enunciated by the Apex Court in MANU/SC/0043/1987 : [1987]2SCR805 , where the Apex Court has observed that if the parties go for trial having understood each others case very well and allowed the evidence to be let in, then the plaintiff cannot be non-suited on the ground of vagueness in pleading. Applying that principle to the case on hand, the grievance made before this Court by the petitioners is unacceptable.

6. The next argument advanced on behalf of the petitioners that the evidence adduced on behalf of the plaintiff will have to be ignored, because there is no pleading in that behalf. There is no substance in this grievance. As observed earlier, the decisions of the Apex Court in MANU/SC/0043/1987 : [1987]2SCR805 , clearly deals with this aspect of the matter. It is not possible to say that any prejudice has been caused to the petitioners by adduction of that evidence by the respondent. As is seen from the record, the petitioners did not take any objection for letting in of the said evidence, but contested the matter having fully understood the case of the respondent. What is relevant to note is that the petitioners did not think it necessary to challenge the evidence of the respondent. In this view of the matter, the issue of reasonable and bona fide requirement will have to be answered in favour of the respondent. Therefore, no fault can be found with the conclusion reached by the Appellate Court in this behalf.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4457 of 1991

Decided On: 28.08.2002

 Gaur Chandra Basu and Anr. Vs. Ruchira Ashok Sonde and Anr.

Hon'ble Judges/Coram:
A.M. Khanwilkar, J.


Citation: 2002(1) ALLMR 312

Read full judgment here: Click here


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