# C.A. Kriti Tandon v. M/s Mehta Sai Das Jewelers, Kanpur Nagar

- **Citation:** (2024) 7 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-11
- **Case number:** Matters Under Article 227 No. 1512 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-a-kriti-tandon-v-m-s-mehta-sai-das-jewelers-kanpur-nagar-52333
- **Pages:** 11

## Headnote

A. Constitution of India, 1950-Article 227U.P.
Act
No.
13
of
1972-Sections
21(1)(a)-suit for eviction and arrears of
rent-rejection-revision-rejection-the
issue
is
about
the
procedure
and
practice of argument by a counselcounsel of a party is not supposed to
know any facts beyond the pleadings-if
any order passed considering such facts,
which are not pleaded, is liable to set
aside-It is well settled that in the
absence of pleading, evidence, if any,
produced by the parties cannot be
considered. (Para 1 to 19)

B. The second issue pertains to procedure
and practice applicable to Judge of a
Court-It is settled principle of law that the
parties to the suit cannot travel beyond
the pleadings so also the Court cannot
record any finding on the issues which are
not part of pleadings-Any finding recorded
on an issue de hors the pleadings is
without jurisdiction-Para 16, 17)

C. The third issue pertains to the finding of
Revisional court that SCC court has taken
suo moto cognizance of SCC suit -the
judgment of Revisional Court is self
contradictory-on one hand, Revisional
Court has taken view that finding of SCC
Court is bad and on the other hand,
rejected
the
revision,
which
is
not
permissible as the judgment of a Court
cannot be contrary to its finding-Thus, the
impugned orders are bad and liable to set
aside-Matter is remanded back. (Para 26
to 29)

The writ petition is allowed. (E-6)

List of Cases cited:
7 All. C.A. Kriti Tandon Vs. M/s Mehta Sai Das Jewelers, Kanpur Nagar
865

## Text

864 INDIAN LAW REPORTS ALLAHABAD SERIES
the probability of two views and if two views
on the evidence adduced are suggestive, one
pointing to the guilt of accused and the other
his innocence, the view in favour of the
accused should be adopted. Moreover,
applying the laid down text in Doshi's case
(supra), we don't find any manifest error in
the trial court's approach in acquitting the
accused.

53. We find it difficult to accept the
testimony of PW-1, PW-2 and PW-3 in the
manner the same has been deposed before the
trial court. We consider that the testimony of
PW-1, PW-2 and PW-3 would come in the
third category of neither wholly reliable nor
wholly unreliable for the reasons recorded
herein above. Therefore, the contesting
accused are entitled to the benefit of the doubt.

54. As a result, the Government Appeal
No.31 of 1991, arising out of impugned
judgment and order dated 13.9.1990 passed
by
learned
Special/Additional
Sessions
Judge, Mathura in leading Sessions Trial
No.225 of 1998 titled as State v. Karan Singh
and others, is devoid of merits, and is
accordingly
dismissed,
and
thus,
the
impugned
judgment
and
order
dated
13.9.1990
passed
by
the
learned
Special/Additional Sessions Judge, Mathura
in the aforesaid sessions trial is upheld.
----------
(2024) 7 ILRA 864
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 1512 of 2024
(CIVIL)

C.A. Kriti Tandon ...Petitioner
Versus
M/s Mehta Sai Das Jewelers, Kanpur
Nagar ...Respondent

Counsel for the Petitioner:
Sri Prakhar Tandon

Counsel for the Respondent:
Sri Rajnish Sahai Saxena, Sri Vikash
Mathur, Sri Varun Mathur

A. Constitution of India, 1950-Article 227U.P.
Act
No.
13
of
1972-Sections
21(1)(a)-suit for eviction and arrears of
rent-rejection-revision-rejection-the
issue
is
about
the
procedure
and
practice of argument by a counselcounsel of a party is not supposed to
know any facts beyond the pleadings-if
any order passed considering such facts,
which are not pleaded, is liable to set
aside-It is well settled that in the
absence of pleading, evidence, if any,
produced by the parties cannot be
considered. (Para 1 to 19)

B. The second issue pertains to procedure
and practice applicable to Judge of a
Court-It is settled principle of law that the
parties to the suit cannot travel beyond
the pleadings so also the Court cannot
record any finding on the issues which are
not part of pleadings-Any finding recorded
on an issue de hors the pleadings is
without jurisdiction-Para 16, 17)

C. The third issue pertains to the finding of
Revisional court that SCC court has taken
suo moto cognizance of SCC suit -the
judgment of Revisional Court is self
contradictory-on one hand, Revisional
Court has taken view that finding of SCC
Court is bad and on the other hand,
rejected
the
revision,
which
is
not
permissible as the judgment of a Court
cannot be contrary to its finding-Thus, the
impugned orders are bad and liable to set
aside-Matter is remanded back. (Para 26
to 29)

The writ petition is allowed. (E-6)

List of Cases cited:
7 All. C.A. Kriti Tandon Vs. M/s Mehta Sai Das Jewelers, Kanpur Nagar
865
1. Sri Shivaji Balaram Haibatti Vs Sri Avinash
Maruthi Pawar (2017) 0 Supreme (SC) 1109

2. Girish Chandra Gupta Vs St. of U.P. (2005) 0
Supreme (All) 1347

3. H.P., shimla in re Shri S.C. Kainthla Vs St. of
H.P. & or.s (CWP Nos. 2061 of 2018, CWP 2292
of 2018)

4. Ram Sarup Gupta (dead) by LRs Vs Bishun
Narain Inter College & ors. (1987) 0 Supreme
(SC) 409

5. Virendra Kashinath Ravat & anr. Vs Vinayak
N. Joshi & ors. (1998) 0 Supreme (SC) 1133

6. Bachhaj Nahar Vs Nilima Mandal & anr.
(2008) 0 Supreme (SC) 1421

7. St. of Mah. Vs Ramdas Shrinivas Nayak &
anr. (1982) 0 Supreme (SC) 131

(Delivered by Hon'ble Neeraj Tiwari, J.)

 1. Heard Sri Prakhar Tandon, learned
counsel for petitioner and Sri Vikash
Mathur along with Sri Rajnish Sahai
Saxena, learned counsel for respondent.

2. Present petition has been filed
seeking following relief:-

 "i.
Set
aside
the
impugned
judgment and decree dated 02.02.2022
passed by learned Judge Small Cause
Courts, Kanpur Nagar in SCC Suit No. 72
of 2015 (CA Kriti Tandon vs. M/s Mehta
Sai Das Jewelers).

 ii.
Set
aside
the
impugned
judgment and decree dated 18.08.2023
passed by learned Revision Court in SCC
Revision No. 42 of 2022 (CA Kriti Tandon
vs. M/s Mehta Sai Das Jewelers)."

3. Brief facts of the case are that
petitioner-plaintiff has filed SCC Suit No.
72 of 2015 for eviction and arrears of rent,
upon which, notices were issued and
pleadings have also been exchanged. After
exchange
of
pleadings,
points
of
determination have been framed and
ultimately suit was rejected by the SCC
Court vide order dated 02.02.2022. Against
the said order, petitioner-plaintiff has filed
SCC Revision No. 42 of 2022, which was
also rejected vide order dated 18.08.2023.
Against both the orders, present petition
has been filed under Article 227 of
Constitution of India.

4. Apart from many other grounds,
learned counsel for petitioner has firmly
argued that while deciding the point no. 4,
there is reference of SCC Suit No. 288 of
2021 (Prakhar Tandon vs. M/s Mehta Sai
Das Jewelers). SCC Court has taken note of
above referred SCC Suit and given its
finding that in case, the present SCC Suit is
allowed, Rent Case No. 101 of 2016
(Prakhar Tandon vs. M/s Mehta Sai Das
Jewelers) under Section 21(1)(a) of U.P.
Act No. 13 of 1972 as well as SCC Suit
No. 288 of 2021 (Prakhar Tandon vs. M/s
Mehta Sai Das Jewelers) shall become
infructuous.

5. He firmly submitted that there is
no whisper of SCC Suit No. 288 of 2021 in
the pleadings of SCC Suit i.e. plaint,
written submissions or replica. In fact,
reference of SCC Suit No. 288 of 2021 is
beyond
the
pleadings,
therefore,
considering the said suit, any finding
returned by the SCC Court is bad and
solely on this ground, order is liable to be
set aside.

6. He next submitted that there is
apparent error in order dated 02.02.2022 of
SCC Court, therefore, petitioner-plaintiff
has filed SCC Revision with this specific
866 INDIAN LAW REPORTS ALLAHABAD SERIES
ground and surprisingly, Revisional Court
while deciding the revision has admitted
this fact that SCC Court has taken suo moto
cognizance of SCC Suit No. 288 of 2021,
which is bad, but rejected the SCC
Revision. He further submitted that this fact
has not been disputed by the counsel for
respondent that facts of SCC Suit No. 288
of 2021 is beyond pleadings, therefore,
once, this is the factual situation, both the
orders are bad and liable to be set aside. In
support of his contention, he has placed
reliance upon the judgment of Apex Court
in the matter of Sri Shivaji Balaram
Haibatti vs. Sri Avinash Maruthi Pawar;
2017 0 Supreme(SC) 1109 and this Court
in the matter of Girish Chandra Gupta vs.
State of U.P.; 2005 0 Supreme (All) 1347.
He also argued about the conduct of a
Judge while
deciding
the
case
and
ultimately submitted that if a Judge is
having any personal interest in the matter
or having personal knowledge of facts, he
must recuse himself from the hearing of the
case. In support of his contention, he has
placed
reliance
of
Division
Bench
judgment of High Court of Himachal
Pradesh, Shimla in the matter of Shri S.C.
Kainthla vs. State of H.P. & Ors. (CWP
Nos. 2061 of 2018 alongwith CWP 2292 of
2018) decided on 12.12.2018.

7. Per contra, Sri Vikash Mathur
along with Sri Rajnish Sahai Saxena,
learned counsel for respondent has not
disputed this fact that facts of SCC Suit
No. 288 of 2021 is not part of pleadings,
but submitted that reference of SCC Suit
No. 288 of 2021 is based upon the
argument made by learned counsel for
respondent-defendant, therefore, it cannot
be said that SCC Court has taken suo
moto cognizance. He firmly submitted
that the said issue was not so relevant,
therefore, even if it is beyond pleadings,
this cannot be a ground for allowing the
present petition. In support of his
contention he has placed reliance upon
the judgments of Apex Court in the
matters of Ram Sarup Gupta (dead) by
L.Rs. vs. Bishun Narai Inter College and
others; (1987) 0 Supreme(SC) 409,
Virendra Kashinath Ravat & Anr. vs.
Vinayak N. Joshi & Ors.; (1998) 0
Supreme(SC) 1133, Bachhaj Nahar vs.
Nilima Mandal & Anr.; (2008) 0
Supreme(SC)
1421
and
State
of
Maharashtra
vs.
Ramdas
Shrinivas
Nayak and another; 1982 0 Supreme
(SC) 131.

8. Earlier case was heard on
30.05.2024 and this Court has reserved the
order to decide as to whether a counsel can
argue a fact beyond pleadings or not. Further,
a Judge can record a finding based upon his
personal
knowledge
taking
suo
moto
cognizance under the law or not.

9.

I
have
considered
the
submissions advanced by counsels for
parties, perused the records as well as
judgments relied upon.

10.

After
summarizing
the
arguments, there are three questions,
which are to be answered by this Court.

 (i) as to whether a counsel
beyond the pleadings can place a fact
before the Court based upon his personal
knowledge ?

 (ii) as to whether a Judge while
deciding the case can consider a fact, which
is not the part of pleading and returns its
finding upon that ?

 (iii)
as
to
whether
once
Revisional Court has accepted that SCC
7 All. C.A. Kriti Tandon Vs. M/s Mehta Sai Das Jewelers, Kanpur Nagar
867
Court has taken suo moto cognizance of the
facts which are not the part of pleading and
same is bad, can reject revision ?

11. The first issue is about the
procedure and practice of argument by a
counsel. There is no dispute on the point
that any legal issue can be raised by a
counsel before a Court either pleaded or
not. Any provision of Constitution, Act,
Statutes or Court made law i.e. judgments
of Courts including Coordinate Court, High
Courts or Supreme Court can be placed
before the Court at any stage, for which no
pleading is required.

12. So far as argument based upon
facts are concerned, Counsel of a party is
not supposed to know any facts beyond the
pleadings. In fact, while representing a
client, he is having only source of
knowledge of facts arising out of pleadings
and in case any fact is not pleaded in the
pleadings, he cannot raise such facts before
the
Court
based
upon his
personal
knowledge. To bring any new facts before
the Court, an affidavit is required to be
filed by the plaintiff or defendant, as the
case may be, alongwith opportunity of
rebuttal to other side. In case any such facts
are raised beyond the pleadings, same is
absolutely bad, it is required on the part of
Court to depreciate and reject the same.
Therefore, this Court is of the firm view
that a counsel cannot be given liberty to
argue a fact before the Court which is not
the part of pleadings and in case any such
argument is made, that may be recorded by
the Courts, but ultimately should have been
rejected. If any order has been passed
considering such facts, which are not
pleaded, is bad and liable to be set aside.

13. Therefore, answer of the first
question is that a counsel can not be
permitted to argued a fact, which is not the
part of pleadings. In case, it is argued, it is
required on the part of Court to reject the
same.

14. Now, coming to the second
issue which pertains to the procedure and
practice applicable to the Judge of a Court.
One thing is common here that apart from
law, Judge is supposed to know the facts
only from the pleadings. Here, in the
present case, there is no dispute on the
point that SCC Suit No. 288 of 2021 is not
part of the pleadings and it is argued by
learned counsel for defendant. The said
argument was recorded by the SCC Judge,
but surprisingly, while deciding the suit, he
was opined that in case present suit is
allowed, Rent Case No. 101 of 2016 and
SCC Suit No. 288 of 2021 shall become
infructuous. Now, it is clear that SCC
Judge has taken note of SCC Suit No. 288
of 2021 and decided the case to save the
proceedings of SCC Suit No. 288 of 2021
also. Relevant part of judgment is being
quoted below:-

 "यजद वतिमान वाद में प्रजतवादी को
िेदखल करके प्रश्नगत दुकान का कब्जा वाजदनी
को जदलाया जाता है, ति अन्य सहस्वामी प्रखर
टण्डन द्वारा दास्खल रेण्ट वाद संख्या 101/2016
प्रखर टण्डन िनाम मेससि मेहता साईदास
ज्वैलसि धारा 21 (1) (ए) यू०पी०एक्ट 13 सन्
1972 की कायिवाही जनष्फल हो जाएगी। इसके
अलािा इसी प्रश्नगतं िुकाि से प्रवतिािी के
विष्कासि एिं वकराया िसूली के वलए
िाखखल वकये गए लघुिाि सं0-288/2021
प्रखर टण्डि बिाम मेससन मेहता साईिास
ज्वैलसन, जर इस न्यायालय में लखित है। यह
लघुिाि भी विष्फल हर जाएगा। इन
पररस्थिजतयों में वाद िाहुल्यता एवं कानूनी
पेचीदजगयां अत्यजधक िढ़ जायेंगे और अन्य
सहस्वामी
प्रखर
टण्डन,
सजहत
अन्य
868 INDIAN LAW REPORTS ALLAHABAD SERIES
सहस्वामीगणों के जहत प्रभाजवत हो जायेंगे।
मामले के समस्त तथ्यों एवं पररस्थिजतयों को
दृजिगत रखते हुए एवं माननीय उच्चतम्
न्यायालय द्वारा उपरोक्त सभी जवजध व्यवथिाओं
में प्रजतपाजदत जवजध जसद्धान्त के अनुसार अन्य
सहस्वामीगण / भूस्वामीगण की सहमजत के जिना
वाजदनी को वतिमान वाद प्रजतवादी की िेदखली
के जलए संस्थित करने का अजधकार नहीं है।
तदनुसार जवचारणीय जिन्दु सं० 2 वाजदनी के
जवरूद्ध जनणीत जकया जाता है।"

15. Similar issue was before the
Court in the matter of Girish Chandra
Gupta (Supra) in which Court has held that
without pleading, no one can be permitted
to
lead
evidence
beyond
pleadings.
Relevant paragraph no. 5 of the said
judgment is quoted below:-

 "(5) BEFORE this Court, learned
Counsel appearing on behalf of the
petitioners- tenants contended that the plea
of Sub-section (4) of Section 20 of the Act
being
not
available
to
the
tenantspetitioners in view of the proviso to Section
20 (4) of the Act has neither been taken in
the plaint, nor by way of any amendment,
therefore the revisional court have gone
beyond its jurisdiction in decreeing the suit
filed by the landlord. It is settled law that
without pleadings, no one can be permitted
to led evidence beyond the pleadings.
Learned counsel for the respondentslandlord referred to the plaint, which has
been annexed as Annexure-CA I to the
counter-affidavit. A perusal thereof reveals
that there was no such plea that the
petitioners-tenants are not entitled to get
the benefit of Section 20 (4) of the Act, has
been taken by the respondents-landlord. In
this view of the matter, the orders passed
by the trial court as well as by the
revisional court deserve to be quashed and
are hereby quashed. The matter will now
go back to the trial court to decide the suit
afresh in the light of the observations made
in this judgment and in accordance with
law."

16. This issue was also before the
Apex Court in the matter of Sri Shivaji
Balaram Haibatti (Supra) and the Apex
Court has taken strict view that parties to
the suit cannot travel beyond pleadings.
Relevant paragraph no. 28 of the said
judgment is quoted below:-

 "28. It is these issues, which were
gone into by the two Courts and were
concurrently decided by them against the
respondent. These issues, in our opinion,
should have been examined by the High
Court with a view to find out as to whether
these findings contain any legal error so as
to call for any interference in second
appeal. The High Court, however, did not
undertake this exercise and rather affirmed
these findings when it did not consider it
proper to frame any substantial question of
law. It is a settled principle of law that
the parties to the suit cannot travel
beyond the pleadings so also the Court
cannot record any finding on the issues
which are not part of pleadings. In other
words, the Court has to record the findings
only on the issues which are part of the
pleadings on which parties are contesting
the case. Any finding recorded on an issue
de
hors
the
pleadings
is
without
jurisdiction. Such is the case here. "

17. From the perusal of judgments
of this Court as well as Apex Court, it is
apparently clear that Courts cannot be
permitted to travel beyond pleadings in the
matter of facts and in case any finding
recorded beyond pleadings and judgment
7 All. C.A. Kriti Tandon Vs. M/s Mehta Sai Das Jewelers, Kanpur Nagar
869
given considering the same, such judgment
is not sustainable.

18. Sri Vikash Mathur, learned
counsel for respondent has placed reliance
upon upon paragraph no. 6 of the judgment
of Ram Sarup Gupta (Supra). From the
perusal of paragraph no. 6 of the said
judgment, it is apparently clear that fact of
the case is entirely different and in that
matter Apex Court has taken view that once
the facts are known to the parties and
evidence are also led in trial, absence of
pleading cannot be a ground to reject the
suit. Relevant paragraph no. 6 of the said
judgment is quoted below:-

 "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 record to support that plea. It is
well settled 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 it 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.
Shri Chandramaul, [1956] 1 SCR 286 a
Constitution
Bench
of
this
Court
considering this question observed:

 "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
870 INDIAN LAW REPORTS ALLAHABAD SERIES
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 reply 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." "

19. Another judgment relied by
learned counsel for respondent is Bachhaj
Nahar (Supra). Relevant paragraph nos.
10-11 of the said judgment is quoted
below:-

 "10. The object of issues is to
identify from the pleadings the questions or
points required to be decided by the courts
so as to enable parties to let in evidence
thereon. When the facts necessary to make
out a particular claim, or to seek a
particular relief, are not found in the plaint,
the court cannot focus the attention of the
parties, or its own attention on that claim or
relief, by framing an appropriate issue. As a
result the defendant does not get an
opportunity
to
place
the
facts
and
contentions necessary to repudiate or
challenge such a claim or relief. Therefore,
the court cannot, on finding that the
plaintiff has not made out the case put forth
by him, grant some other relief. The
question before a court is not whether there
is some material on the basis of which
some relief can be granted. The question is
whether any relief can be granted, when the
defendant had no opportunity to show that
the relief proposed by the court could not
be granted. When there is no prayer for a
particular relief and no pleadings to support
such a relief, and when defendant has no
opportunity to resist or oppose such a
relief, if the court considers and grants such
a relief, it will lead to miscarriage of
justice. Thus it is said that no amount of
evidence, on a plea that is not put forward
in the pleadings, can be looked into to grant
any relief. The High Court has ignored the
aforesaid principles relating to the object
and necessity of pleadings. Even though
right of easement was not pleaded or
claimed by the plaintiffs, and even though
parties were at issue only in regard to title
and possession, it made out for the first
time in second appeal, a case of easement
and granted relief based on an easementary
right. For this purpose, it relied upon the
following observations of this Court in
Nedunuri Kameswaramma v. Sampati
Subba Rao [AIR 1963 SC 884]: "No doubt,
no issue was framed, and the one, which
was framed, could have been more
elaborate, but since the parties went to trial
fully knowing the rival case and led all the
evidence not only in support of their
contentions but in refutation of those of the
other side, it cannot be said that the absence
of an issue was fatal to the case, or that
there was that mistrial which vitiates
proceedings. We are, therefore, of opinion
that the suit could not be dismissed on this
narrow ground, and also that there is no
need for a remit, as the evidence which has
been led in the case is sufficient to reach
the right conclusion." But the said
observations were made in the context of
absence of an issue, and not absence of
pleadings. The relevant principle relating to
circumstances in which the deficiency in,
or absence of, pleadings could be ignored,
was stated by a Constitution Bench of this
Court
in
Bhagwati
Prasad
vs.
Shri
Chandramaul - AIR 1966 SC 735 : "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
7 All. C.A. Kriti Tandon Vs. M/s Mehta Sai Das Jewelers, Kanpur Nagar
871
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 matter relating to the
title of both parties to the suit was touched,
tough 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. The
principle was reiterated by this Court in
Ram Sarup Gupta (dead) by LRs., vs.
Bishun Narain Inter College [AIR 1987 SC
1242]: "It is well settled 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 it is the duty of the
court to ascertain the substance if 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 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 issue by producing evidence, in
that event it would not be open to a party to
raise the question of absence of pleadings
in appeal."

20 . In both the cases too, facts are
entirely different and as per the facts of the
case, parties are known to all facts, which
are not pleaded and also proceeded to lead
evidence, therefore, they cannot take
ground of absence of pleadings.

21. He has also placed reliance
upon the judgment of Virendra Kashinath
Ravat (Supra). Relevant paragraph nos. 14
& 16 of the said judgment is quoted
below:-

 "14. Learned Single Judge treated
the aforesaid pleading as insufficient to
make out a case for subletting. This was not
a point considered by or even raised before
the two fact finding forums. Order 6 Rule 5
872 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Code of Civil Procedure (For short
'the Code') confers powers on the Court to
order a party to make a further statement or
even a better statement or further and better
particulars of any matter already mentioned
in the pleading. This is incorporated in the
Code to indicate that no suit shall be
dismissed merely on the ground that more
particulars are not stated in the pleadings. If
the contesting respondents, or any of them
had raised objection that the pleading was
scanty perhaps appellants would have
further elaborated it as provided in Rule 5
above. At any rate this should not have
been a premise on which interference by
the High Court should have been made in
exercising a jurisdiction of superintendence
under Article 227 of the Constitution.

 15. That apart, the averment
extracted above cannot by any standard be
dubbed as bereft of sufficiency in pleading.
Under Order 6 Rule 2(1) of the Code the
requirement is the following:

 "Every pleading shall contain,
and contain only, a statement in a concise
form of the material facts on which the
party pleading relies for his claim or
defence, as the case may be, but not the
evidence by which they are to be proved.

 16. The object of the Rule is twofold. First is to afford the other said
intimation regarding the particular facts of
his case so that they may be met by the
other side. Second is to enable the court to
determine what is really the issue between
the parties. The words in the sub-rule "a
statement in a concise form" are definitely
suggestive that brevity should be adhered
to while drafting pleadings. Of course
brevity should not be at the cost of setting
out necessary facts, but it does not mean
niggling in the pleadings. If care is taken in
the syntactic process, pleadings can be
saved from tautology. Elaboration of facts
in pleadings is not the ideal measure and
that is why the sub-rule embodied the
words "and contain only" just before the
succeeding words "a statement in a concise
form of the material facts"."

22. Here also facts of the case are
entirely different and having no relevance
in the present case.

23. Lastly, he placed reliance upon
the judgment of Apex Court in the matter
of State of Maharashtra(Supra). Issue
before the Apex Court was as to whether
any concession given by the counsel before
the Court and also recorded can be resile
from the same or not. In the present matter,
there is no such concession given by the
counsel, but counsel brought a fact into the
knowledge of the Court, which is beyond
the pleadings and considering the same,
order
impugned
has
been
passed.
Therefore, this judgment is not relevant for
present case.

24. In the present case, the issue is
entirely different and creating doubt over
the fairness and conduct of the Judge
concerned, who has passed the order. It is
undisputed between the parties that there is
no reference of SCC Suit No. 288 of 2021
in the pleading and as per Sri Mathur,
learned counsel for respondent, it was
argued by counsel for defendant before the
SCC Court. Once such is the situation, a
Judge must have discard such arguments at
the very threshold and certainly while
deciding the issue that argument should not
be taken care of. In the matter of Ram
Sarup Gupta (Supra), Apex Court in a
very strong words has said that parties in
the suit cannot travel beyond pleadings. In
fact such finding of facts beyond pleadings
7 All. C.A. Kriti Tandon Vs. M/s Mehta Sai Das Jewelers, Kanpur Nagar
873
made by Court creates doubts and fairness
of a Judge. In the case of Shri S.C.
Kainthla (Supra), the Court has dealt in
detail about the conduct and fairness of a
Judge based upon the Principle that
Judgeship should not only be done but must
be seem to be done. Relevant paragraph no.
28 of the said judgment is quoted below:-

 "28. Hon'ble Apex Court in the
aforesaid judgment has reiterated that
impartiality is essential to the proper
discharge of the judicial office. It applies
not only to the decision itself but also to the
process by which the decision is made. A
judge shall ensure that his or her conduct,
both in and out of court, maintains and
enhances the confidence of the public, the
legal profession and litigants in the
impartiality of the judge and of the
judiciary. A judge shall disqualify himself
or herself from participating in any
proceedings in which the judge is unable to
decide the matter impartially or in which it
may appear to a reasonable observer that
the judge is unable to decide the matter
impartially. "

25. Therefore, in the light of law
laid down by the Courts, answer of
question no. 2 is that in case any fact is not
part of pleadings, a Judge should never
place reliance upon such facts while
deciding the case. In case reliance is
placed, judgment is bad and alone on this
ground, liable to be set aside.

26 . Now, coming to the third issue
which is about the judgment of Revisional
Court. Against the order dated 02.02.2022,
revision was filed and in paragraph no. 15
of the judgment dated 18.08.2023, there is
categorical finding of Revisional Court that
SCC Court has taken suo moto cognizance
of SCC Suit No. 288 of 2021 which is bad.
Paragraph No. 15 of the judgment of
Revisional Court dated 18.08.2023 is
quoted below:-

 "15. यहााँ यह उल्लेखनीय है जक
अवर न्यायालय द्वारा अपने जनणिय में वाद
संख्या- 288/2021 का उल्लेख करते हुये यह
कहा गया है जक इसी दुकान के इसी प्रजतवादी के
जवरुद्ध प्रखर टण्डन द्वारा जकराया वसूली एवं
जनष्कासन के जलये वाद दास्खल जकया गया है
जिजक इस वाद का कहीं कोई उल्लेख पत्रावली
पर नहीं है। पत्ािली के अिलरकि से विवित
हरता है वक अिर न्यायालय द्वारा अपिे
विणनय में िाि संख्या-288/2021 प्रखर टण्डि
बिाम मेससन मेहता सांई िास ज्वैलसन का
उल्लेख वकया गया है ि कहा गया है वक यह
िाि न्यायालय में लंवबत है, परंतु पत्ािली में
इस िाि के विषय में कहीं करई उल्लेख िहीं
है। अतः ऐसा प्रकट हरता है वक अिर
न्यायालय द्वारा इस बात का स्वतः ही संज्ञाि
ले वलया गया है, जरवक यद्यवप त्ुवटपूणन है,
परंतु उपयुिक्त संपूणि जववेचन एवं जवश्लेिण के
पररप्रेक्ष्य में यह स्पि है जक जवद्वान लघुवाद
न्यायालय द्वारा पाररत आक्षेजपत जनणिय, तथ्यों,
साक्ष्यों एवं जवजध के जवश्लेिण के सापेक्ष ताजकिक
जनष्किि पर आधाररत है। जवद्वान जवचारण
न्यायालय द्वारा पाररत आक्षेजपत आदेश में कोई
तथ्यात्मक या जवजधक संिंधी त्रुजट पररलजक्षत नहीं
होती है। अतः उपयुिक्त संपूणि जववेचन एवं
जवश्लेिण के पररप्रेक्ष्य में आक्षेजपत आदेश में
जकसी हस्तक्षेप की आवश्यकता नहीं रह जाती
है। तदनुसार यह पुनरीक्षण िलहीन है, तदैव
जनरस्त जकये जाने योग्य है।"

27. Once, such is the finding, it is
very surprising as to how revision has been
rejected. In fact the judgment of Revisional
Court is self-contradictory as on one hand,
Revisional Court has taken a view that
finding of SCC Court is bad and on other
874 INDIAN LAW REPORTS ALLAHABAD SERIES
hand, rejected the revision, which is not
permissible.

28. Therefore, answer of question
no. 3 is that this Court is of the firm view
that judgment of a Court cannot be contrary
to its finding. While deciding any issue, a
categorical and reasonable finding is
required from the Court and based upon
that, judgment has to be pronounced.
Further, it is not permissible to give a
contrary judgment not corroborating with
the
finding
given.
Therefore,
such
judgment of Revisional Court is bad and
liable to be set aside.

29. In the light of observations
made here-in above, impugned orders dated
02.02.2022 & 18.08.2023 are bad and
hereby set aside.

30. Matter is remanded back to
Judge, Small Cause Court, Kanpur Nagar
to decide SCC Suit No. 72 of 2015 afresh,
maximum within a period of three months
from the date of production of certified
copy of this order.

31.

With
the
aforesaid
observations, writ petition is allowed.

32. No order as to costs.
----------
(2024) 7 ILRA 874
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Matters Under Article 227 No. 3112 of 2023
Alongwith
other cases

Nirmal Agarwal ...Petitioner
Versus
Pradeep Kumar Gupta ...Respondent

Counsel for the Petitioner:
Sri Rishab Agarwal, Sri Tarun Agarwal

Counsel for the Respondents:
Sri Rama Goel Bansal

A. Civil Law - Landlord-tenant dispute-
Sections 2(b), 2 (d), 10, 33 & 34 of the
U.P. Act No. 16 of 2021- Petition filed by
the tenant- Challenge to the order of the
Rent Authority- Section 10 application by
landlord Trust for determination of rent-
Decided
without
considering
tenant's
objection regarding maintainability.

B. Definition of landlord under Section
2(b) of the Act- includes a person who
receives rent on behalf of owner/lessor-
Secretary of the landlord trust in present
case covered by the definition of landlord-
Form of Information of Tenancy under
Section 4(1) as provided in First Schedule
of the Act- contains correct information-
Application filed by the trust through its
secretary- Application under Section 10
not filed by Secretary in his personal
capacity. (Paragraphs 17 and 18)
HELD:
The definition of Landlord under Section 2 (b)
embraces within its scope landowner or lessor
called by any other name, a person who
receives or is entitled to receive the rent of any
premises, on his own account and includes the
successor, transferee or assignee of such person
as also a trustee or guardian or receiver
receiving rent for the premises on account of or
on behalf of or for the benefit of any other
person such as minor or person of unsound
mind who cannot enter into a contract. (Para
17)

Thus, the definition includes a person who
receives rent on behalf of the owner/lessor as
per Section 2 (b) (ii) of the Act. In the case at
hand, admittedly the tenant petitioner has been
tendering
rent
of
the
premises
to
the
respondent who is the Secretary of Seth Girwar
Lal Pyare Lal Shiksha Trust, Agra/owner/lessor
of the premises as is evident from the rent