1. Appellant, M/s. Sudarshan Trading Company Limited, is aggrieved by the judgment and decree D/-19-4-1983 made in Original Suit No. 3091 of 1980, on the file of the 10th Addl. City Civil Judge, Bangalore, decreeing the respondent plaintiff's suit for ejectment and granting an order for possession.
This appeal is in the list of admission cases. It is admitted and with the consent of learned Counsel on both sides taken up for final hearing, and disposed of by this judgment
2. Respondent, Mrs. L. D'Souza, is the owner of premises No. 11, C. J. D'Souza Road, Civil Station, Bangalore, and appellant is the tenant. Letting is for non-residential purposes. On 26-12-1974, after an earlier lease for 3 years had come to an end, a fresh lease deed dated 26-12-1974, Ext. P. 1, was entered into between the parties. The term mentioned in Ext. P.1 was three years from 1-8-1974. Rent was Rs. 2,300/- per month. The period of 3 years under Ext. P. I having run out, respondent issued notice Ext. P. 2 dated 7-10-1977 telling, appellant that she did not desire to renew the lease and that the tenancy stood terminated and called upon the appellant to quit and deliver vacant possession on the expiry of 31-101977. This notice stood unreplied. Some eight months thereafter on 1-6-1978, the present suit for ejectment was instituted. Tit para 4 of plaint it was stated that the lease came to an end on 31-7-1977 by efflux of time and that thereafter 'the tenancy in respect of the said premises became a month to month tenancy'.
3. Appellant denied that after the expiry of the lease there was any month to month tenancy by holding over. It was contended that the parties had really agreed upon a ten year lease from 1972 and that though Ext. P. 1 mentioned only three years, it was just. a partial effectuation of the agreement between the parties, being merely the manner in which the agreement for a ten year lease was to be implemented from time to time. The appellant, accordingly, contended that its continuance in possession was referable to, and in part performance of, the alleged agreement for a ten year lease which, according to the appellant, would 'last up to July 1982.'
In regard to the validity of the notice, Ext. P. 2, it was urged:
' It is thus clear the defendant continues in possession in part performance of the agreement to lease for the further period as aforesaid and the defendant is willing to perform his part of the contract.In the circumstances the alleged termination or tenancy is invalid and the suit for eviction is premature. It is further submitted is otherwise bad in law as it purports to terminate the lease before the expiry of three years from the date of execution of lease deed.'
4. Sri S. A. Hakeem, learned Counsel for appellant says that having regard to the specific defence pleaded the expression ,three, in the above excerpt would require to be read as 'ten'.
5. The trial Court framed the necessary issues stemming from the pleadings. In the context of the contentions urged before us in this. appeal, the relevant issues are issues 1, 2, 4 and 6. They relate to the questions whether there was, as urged by appellant, an agreement to continue appellant in possession for a period of ten years from 1972 and accordingly, whether appellant's continued possession was referable to and the part performance of that agreement and whether the notice to quit was invalid on the grounds urged.
6. Respondent-plaintiff tendered evidence as P. W. 1 and got marked Exts. P. 1 to P. 3 which are respectively, the lease-deed; copy of the Quit Notice and its postal acknowledgment. On behalf of the appellant-defendant one K. Poonuswamy, Assistant Divisional Manager of the Company tendered evidence as D. W. 1. Exts. D. I to 1D. 4 were marked in evidence.
On an appreciation of the evidence on record the trial Court recorded findings on all the material issues in favour of the respondent-plaintiff and made an order granting possession.
7. Sri S. A. Hakeem, learned Counsel for the appellant, contended that the finding of' the Court below on issue 1 as to the existence of an agreement for a ten year lease was erroneous and that the evidence supported the existence of such an agreement. He urged that the Court below was in error in not accepting the appellant's case that there was no month to month tenancy, Sri S. A. Hakeem urged that, at all events, even if there is a month to month tenancy by holding over after the expiry of the lease period, there ought to be a proper notice under Section 106, T. P. Act, terminating the tenancy by a 15 days, notice expiring with the end of the tenancy month. Sri Hakeem says that, having regard to the provisions of Section 110, T. P. Act, the tease under Ext. P. 1 which commenced on 1-7-1974 'lasts during the whole of the anniversary of the day from which it commenced and that accordingly the lease under Ext. P. 1 ended on the expiry of 1-8-1977 and not 31-7-1977 as averred in the quit notice. Accordingly, the month to month tenancy, says counsel, commence on the of the month and ended on the of the following month and so on; the quit notice Ext. P. 2, is invalid because it does not expire with the end of the tenancy month. Sri Hakeem says that, though this particular ground of the invalidity of the notice had not been urged in the Court below, appellant should be permitted to raise and urge this contention in appeal.
8. Sri Sundar Swamy contended that on the evidence on record no reasonable person can come to the conclusion that there was an agreement for a ten year lease and that there is conflict between pleading and evidence on the essentials of appellant,s case on the point.
On the second contention,Sri Sundar Swamy urged that respondent's suit in substance and reality, was for a decree of ejectment upon the expiry of the lease by efflux of time, that the quit notice was itself unnecessary and superfluous and that the erroneous characterisation by respondent of the nature of appellant's possession, as that of a month to month tenant by holding over, is not conclusive of the matter and does not by itself bring about 'that relationship in view of the circumstances that the specific case of the appellant clearly excluded any possibility of such a tenancy by holding over. Sri Sundar Swamy urged that, at all events, appellant should not be permitted to urge the ground of invalidity of the quit notice now sought to be raised at the stage of arguments as that would work serious prejudice against respondent.
Sri Sundar Swamy further urged this Court should affirm the decree of ejectment in view of the circumstances that even if a ten year lease from July 1972 set up by the defendant Company was held to be true, that period of 10 years also expired in July, 1982. The Court, says Counsel, should take this subsequent event into consideration and affirm the decree of ejectment.
9. On the contentions urged by the learned Counsel on both sides, the points that fall for determination in this appeal admit of being formulated thus :
(a) Whether there was an agreement for a ten year lease and whether the continuance of appellant's possession after the expiry of Ext. P. I is referable to and in part performance of that agreement?
(b) Whether there was a month to month tenancy by holding-over after the expiry of the term under the lease deed Ext. P. I?
(c) If there was such a holding-over month to month tenancy, whether the notice Ext P. 2 is invalid for the reasons urged?
Whether this particular ground of invalidity of the quit notice not having been raised in the Court below, could be permitted in appeal?
(d) Whether, in view of the circumstance that even the 10 year lease, as set-up by the appellant-defendant itself came to an end in: July 1982 the Court can take into account this subsequent event and affirm the decree of ejectment?
10. Re : Point (a)
The appellant's case, on the point, in short, is that in 1972 there was an agreement between the parties for a ten year lease and Ext. P. 1 is only an effectuation in part of that agreement and that the nature of appellant's possession, after the expiry of the period of Ext. P. I is not that of a month to month liable to determination by 15 days' notice but is in part performance of the agreement. Trial Court found no substance in this contention.
11. Let us examine if there is any substance in appellant's case. In para 3 of the written statement appellant's specific case in this behalf is set out:
'3. The suit premises was originally leased to the defendant in or about July 1969 for a period of three years on a monthly rental of Rs. 1,800/- On the expiry of the original lease period to grant extension of the lease for a period of ten years on enhanced rent of Rs. 2300/-. However, the next lease deed was executed only in December 1974 for a period of three years purported from 1-8-1974. Even then it was agreed and understood between the parties that the period of three years mentioned in the document is only for the sake of formality and that the defendants were entitled to continue the lease on the expiry of the said period for a further period up to July 1982. It is thus clear the defendant continues in possession in part performance of the agreement to lease for a further period as aforesaid and the defendant is willing to perform his part of the contract.'
Thus, the case is that even prior to the execution of Ext. P. 1 a ten year period from July 1972 bad been agreed upon. But the evidence of Sri Ponnuswamy, Assistant General Manager of appellant Company, who was the only witness examined for the appellant, sets out an altogether different case. D. W. 1 says :
'. ...........In 1974, a new lease agreement came into existence, for a period of 3 years on a rent of Rs. 2,300/- per month. After lapse of 3 years, from 1974, there was oral talk between the plaintiff and myself and then Divisional Manager Nambeeshan. We told the plaintiff that we are prepared to pay enhanced rent of Rs. 500/- per month and that the fresh lease deed to be executed for another 5 years. Though the plaintiff agreed for extension of lease by 5 years, she wanted time to consult her sons and lawyer about the quantum of rent.'
According to the version of D. W. 1 the negotiations for an extension of the lease were entered into after the expiry of Ext. P. 1. There were negotiations for renewal for another 5 years. The pleading and evidence on the point are divergent.
We have perused Ext. D. 1, a letter from the respondent and Ext. D. 2 said to be a reply thereto and fail to see how any con, eluded contract can be spelled out from them. In Ext. D. 1, respondent while thanking Sri Nambeeshan for sparing the services of a driver, however, added that she would he 'much obliged if you could settle the rent matter soon'. Even on, Sri Ponnuswamy's own admission respondent wanted to consult her sons and her lawyer about the quantum of rent. There can be no binding and concluded agreement when there is no consensus on one of the cardinal terms of the agreement. On the evidence on record all that can be said is that there were, perhaps, some talks between the parties in the matter of renewal of the lease and nothing definite emerged therefrom. This is not the material of which legally binding contracts are made. An agreement to agree is no contract in law.
We accordingly answer Point (a) against appellant.
12. Re: Point (b):
The question is whether after the expiry of the lease under Ext. P. 1 there is a tenancy by holding-over. If there was one, it would be month to month one requiring for its determination 15 days, notice expiring with the end of the tenancy month. It is no doubt true that there are some statements in the plaint itself that there was such a month to month tenancy after the expiry of Ext. P. 1. Is that, by itself, conclusive?
If, after the expiry of the period of lease or after its determination, a tenant merely holds over without the landlords, consent there is no tenancy of any kind at all. If in such case, the tenant continues in possession without landlord's consent he becomes what in English law is called a 'tenant by sufferance'. This is really no tenancy at all in the strict sense and requires no notice to deter mine it, the expression being merely a fiction to avoid the continuance of possession operating as a trespass. It is different from the concept of a tenancy at will which arises by implication of law in certain cases of permissive possession. No notice is necessary to terminate a tenancy at sufferance.
But the case of tenancy by holding over is different and is governed by the provisions of Section 116, T. P. Act. Tenancy by holding over is a creature of a bilateral, consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties.
As to the conditions requisite for a tenancy by holding over under Section 116, T. P. Act, Supreme Court observed: Bhawanji Lakhamshi v. Himattal Jamnadas Dani : 2SCR890 :
'9. The act of holding over after the expiration of the term does ' not create a tenancy of any kind ...... What the section contemplated is that on one side ' there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to continuance of possession by the landlord expressed by acceptance of rent or otherwise.'
13. In the present case appellant never assented to the position that there was a month to month tenancy by holding over. On the contrary, appellant claimed that its possession, subsequent to expiry of the lease under Ext. P. 1, was in pursuance, and part performance, of a 10 year lease, It is as much necessary for the tenant to accept a tenancy by holding over as it is for the landlord to assent to it either expressly or by acceptance of rent, as rent, or otherwise. The negative implications of the assertion by the appellant of a larger right, in our, opinion, excludes, a consensual bilateral act necessary to bring a new month to month tenancy by holding over into being. The specific case of the appellant and the rights asserted by it as regards the nature and character of its possession subsequent to the expiry of Ext. P. 1 are, indeed, inconsistent with and exclude the possibility of the coming into being of a contractual tenancy by holding over.
It is no doubt true that generally, in an action for ejectment, as in deed, in anY other action for that matter, the plaintiff stands or falls, on the strength of his own case and not in the weakness, of defendant's case and that whatever plaintiff himself pleads as the basis and foundation of his case must be taken into account to decide plaintiff entitlement to relief. In the present case, it is true, respondent plaintiff herself has stated that there was a month to month tenancy and proceeded to determine it by notice.
14. But here, the assertion of the respondent that there was a mouth to month tenancy is not an admission of a fact. It is an expression of what, according to respondent, was the nature and character of a legal relationship. That is a mixed question of fact and law. No tenancy by holding over can come into existence by a unilateral assertion of either the erstwhile landlord or tenant. Appellant's stand has, throughout, been one which is inconsistent with and would clearly exclude a case of tenancy by holding over. In such a case the statement by the respondent would not by itself bring about that legal relationship and the averments in the plaint are not decisive.
In Shand Devi v. Amal Kumar Banerjee, (AIR 1981 SC 1550) Supreme Court held that before going into the question of the validity of a notice under Section 106, T. P. Act, it was necessary for the Court to decide first whether Section 106 was at all attracted, and that parties could aot by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. In that case, plaintiff sued for ejectment on the ground that the lease had expired by efflux of time and had also alternatively pleaded that she had determined the tenancy by a notice under Section 106, T. P. Act, on the assumption that after the expiry of the lease there was a month to month tenancy. The defendant did not claim that there was a month to month tenancy. Supreme Court held :
'.............But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession.'
'.........There was, therefore, no question of service of any notice under S. 106,T. P. Act.'
In Bhawanji's case, : 2SCR890 Supreme Court stressed the need for consent of both parties for a tenancy by holding, over under Section 116:
'12. Learned Counsel for the appellants argued that whenever rent is accepted by a landlord from, a tenant whose tenancy has been determined, but who continues in possession, a tenancy, by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of Section 116. We are not inclined to accept this contention........'
If as in the present case, there is no fresh contract of tenancy between the parties -and such a contract cannot come into existence without the consent of both - the position is that the position clearly falls under Section 111(a), T. P. Act, and no notice under Section 106 becomes necessary as there is no month to month tenancy by holding over. This would be so notwithstanding the unilateral assertions of the respondent in the plaint that there was a month to month tenancy. In all such cases the respective cases of both parties, and their pleadings as a whole had to be examined and a conclusion arrived at as to the existence of holding over tenancy on the basis of the material on record.
15.We, accordingly, hold on point (b) that there was no month to month tenancy after the expiry of the lease under Ext. P.1 and that no notice under Section 106 was necessary.
16.Point ( c ) :
This point arises on the assumption that there is a month to month tenancy after the expiry of the period of Ext. P. 1.
The contention of Sri S. A. Hakeem is that having regard to the provisions of Section 110, T. P. Act, the period of lease under Ext. P. I should last during the whole of the anniversary of the day from which it commences and accordingly would expire only on the expiry of 1-8-1977. The month to month tenancy would, accordingly, commence on the second day of August, 1977 and end on the first day of the following month and so on. The notice, Ext. P. 2, according to, Sri Hakeem, which seeks to terminate the tenancy on the expiry of 31-10-1977 could not be held to be valid.
It is true that if a month to month tenancy by holding over has come into existence after the expiry of the period of lease under Ext. P. 1, these consequences, as to the date of commencement of month to month tenancy may be correct (See: Benoy Krishnadas v. Salsiccioni and Dattonpant Gopalvarao Devakate v. Vithalrao Marutirao : AIR1975SC1111 . The consequence of this view may be that the notice to quit. Ext. P. 2, may suffer' from some infirmity.
But this contention as to the validity of Ext. P. 2 was not taken in the Court below. Indeed Ext. P. 2 was not replied to. No contention touching its invalidity on the ground now urged was taken. Indeed the defence was to the effect that having regard to the nature of the defendants' rights, there was no month to month tenancy at all and that a notice, even if otherwise valid, would not entitle the respondent to recover possession What was claimed was the right to remain in possession under an agreement for a 10 year lease. Having regard to this defence there was no occasion for the defendant to raise this particular ground of infirmity of Ext. P. 2, that it did not and with the expiry of the tenancy month. Sri Hakeem contend- that this is a question which goes to the root of respondent's entitlement to possession and should, therefore, be permitted to be raised in appeal. He relied upon a decision of the Mysore High Court in T. K. Siddarama Setty v. V. K. Kalappa (AIR 1950 Mys 63) where a Division Bench held that plea of want of notice can be raised for the first time even in second appeal.
17. It is no doubt true that a plea can be permitted to be raised in appeal if it does not do injustice and cause prejudice to the opposite side. Each case has to be decided on its own particular facts and circumstances. What Sri Sundar Swamy urges is that permitting such a plea to be raised after nearly 6 years of the commencement of the litigation would be oppressive against the respondent and cause her prejudice. Sri Sundar Swamy says that if this contention had been raised in reply to Ext. P. 2 or at least in the course of appellant's written-statement, respondent would have withdrawn her suit even at that stage and corrected the error, if any, by issue of a proper notice. The position, says Sri Sundar Swamy, has been altered by a long lapse of time and permitting appellant to urge this point now would cause prejudice to respondent.
In Gauri Shankar v. M/s. Hindustan Trust (Pvt. Ltd., (AIR 1972 SC 2Mt), the Supreme Court in a similar context observed (M p. 2095) :
'.......Ultimately when the suit for eviction was filed in 1959 it dragged on for several years. In the written statement which was originally filed no plea was taken that a valid notice to terminate the contractual tenancy had not been served and, therefore, the petition for eviction was not maintainable. The respondent waked or 8 years before seeking an amendment to include a plea on the absence of such a notice. The trial Court did allow dw amendment but in our opinion no such amendment should have been allowed on account of the gross delay and teaches on the part of the respondent in raising such a plea. In such matters it mug he remembered that if a technical plea the nature sought to be raised had been rained at an earlier stage the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that plea for nearly 8 years a great deal of prejudice was caused to the appellant ......................
In our judgment the course of the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control Tribunal were more than sufficient to persuade the court that any argument based on the absence of a valid notice should not have been allowed.'
The same considerations, in our opinion, apply in this case. Even on the assumption that there was a month to month tenancy it would cause prejudice to the respondent, if appellant is permitted to raise this ground of invalidity of the notice at this distance of time.
18. We accordingly hold and answer point ( c) also against the defendant-appellant.
19. Point (d)
Sri Sundar Swamy urged that even on the basis of appellant's defence, respondent plaintiff would be entitled to possession in as much as in the course of the pendency of the proceedings before the trial Court even the period of the 10 year lease set up by the appellant bad expired. Sri Sundar Swamy stated that the principle that in such cases the Court could take into account the subsequent event and grant relief to tile plaintiff, has been recognised in several decisions, (Viz., Kamalaksha PA v. Keshava Bhatta : AIR1972Ker110 ; Shikharchand v. , Mst. Bari Bai : AIR1974MP75 ; Ranvijaya Shahi v. Bala Prasad Motani : AIR1978Pat91 ; Syed Jaleel Zinc v. Venkata Murlidhar : AIR1981AP328 and Divakarappa v. Gopala Rao Srinivasa Bhat (1979 (2) Kant LJ 8)).
20. This question might turn out to be merely academic in the present case in view of the circ u in stance that we have held that after the term of the lease under Ext. P. 1 came to an end in 1977, there was no month to month tenancy and that, at all events, even if there was such a month to month tenancy, the grounds of validity of the quit notice ' Ext. P. 2, could not be permitted to be urged at this distance of time.
The principle enunciated in the decisions relied upon, by Sri Sundara Swamy is, that where plaintiff bringing a suit for ejectment on the allegations that the lease in favour of the defendant has either expired or is determined but the defendant sets up a different lease it will be permissible' for the Court to grant relief to the plaintiff on the basis of the admitted case of the defendant, if with reference to 'the case so admitted no reasonable defence is 'available to the defendant and an order granting possession appears justified. The Court could grant such relief on the principle that. if such an alternative relief could possibly have been sought for by the plaintiff, it should be allowed to him to the same extent as if it had been specifically asked for.
This principle was stated by Kerala High Court in Kamalaksha Pai v. Keshava Bhatta, : AIR1972Ker110 thus :
'..............There are two difficulties in his way. Could such a relief be granted according to the procedural law of the land? Secondly, could the plaintiff sustain an incomplete cause of action since the notice terminating the tenancy proceeded on the basis of Ext. A-I being the lease and so it could not have been a termination of the specific tenancy put forward by the defendant.'
Answering the proposition in the affirmative Krishna Iyer, J., (as his Lordship then was) said
'It is certainly not open to a defendant, on whose plea a court seeks to grant relief to the plaintiff to contend that such a. course should not be resorted to and that the facts set out by him should not be accepted. It may happen that a Court chooses to take a defendant at his word and grant a relief to the plaintiff. On that footing the former should not then turn round and say that the Court should not believe him. Every party must pay the penalty for his being treated as honest in Court ...............'
'5. 0 7, R, 7, Civil P.C., while enjoining upon every plaintiff to state specifically the relief which he claims either singly or in the alternative, allows the Court to grant reliefs which may always be given by it as it may think 'to the same extent as if it had been asked for'. Where a relief is asked for in tile plaint on a certain basis, the fact that the plaintiff asks virtually for the relief on a different ground ...................................
The law is, therefore, clear that the plaintiff can be granted the relief he seeks If he could have put forward as an alternative ground the facts pleaded by the defendant to make out an earlier lease (sic). In the present case, 'it would have been perfectly possible for the plaintiff to have stated alternatively that if Ext. A-1 was not valid for any reason he should be given a decree for recovery of possession - and arrears of rent on the strength of the earlier lease.'
In Ranvijaya Shahi v. Bala Prasad Motani : AIR1978Pat91 the High Court of Patna case calling for a different application of the same principle observed
'..........That being so, the lease would again terminate after the renewal of 1st September 1972. That date also to the misfortune of the appellant has gone by long since. Counsel for the appellant has not been able to tell us that there can be any valid probable defence to ejectment on the ground of termination of the present lease. It is a well-settled principle that a Court takes supervening and subsequent events into consideration only for the purpose Of making an adjudication final so as to dispose of the dispute between the parties finally and thus shorten the litigation. In that view of the matter, in the present case there can be no possible defence, justifying any right in the appellant to continue as a lessee after the termination of the lease. An order of eviction has, therefore, to be granted.
This principle was applied in Narayanappa Divakarappa v. Gopala Rao Srinivasa Bhat (11979 (2) Kant LJ 8).
21. What emerges from these authorities is that if the defendant denies the lease pleaded by plaintiff but sets up a different lease under the plaintiff, it would not be impermissible for the Court to afford relief to the plaintiff on the basis of defendant's own case.
In the present case on appellant's own showing even, the ten years lease laid claim to by appellant expired in July 1982, (hiring the pendency of the suit in the trial Court. The decree granting possession made by the trial Court in favour of the respondent plaintiff in April, 1983 can, in our opinion. be supported and sustained on this basis also.
22.We hold and answer point (d) in favour of the respondent.
23. No. other contentions are urged.
24.In the result, for the foregoing reasons, we find no merit in this appeal . The appeal is accordingly dismissed. In the particular circumstances of the case,we leave the parties to bear and pay their own costs.
25. At the conclusion of the judgment, Shri S. A. Hakeem, learned Counsel for the appellant made an oral application under Art. 134A of the Constitution, for grant of a certificate of fitness to appeal to the Supreme Court under Art. 133 of the Constitution from the judgment just now pronounced.
26.We are of the opinion, that this appeal does not involve any substantial question or questions of law of general importance needing to be decided by the Supreme Court. We accordingly refuse the certificate prayed for and dismiss the oral application,
27. Sri S. A. Hake em, however, submitted that the appellant desires to move the Supreme Court for special leave and that till a certified copy of our judgment is furnished to the appellant, and for a reasonable time thereafter, the operation of the judgment and further proceedings in ejectment should be stayed. We think that this prayer is reasonable. Accordingly, we stay the operation of our judgment and all further proceedings pursuant to the decree of ejectment for a period of 2 months from today. Ordered accordingly.
28. Order accordingly.