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Paul Chand Bishan Dass and ors. Vs. Kalu Ram Lachhman Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 505 of 1960
Judge
Reported in(1970)72PLR1006
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 7
AppellantPaul Chand Bishan Dass and ors.
RespondentKalu Ram Lachhman Dass and ors.
Appellant Advocate D.A. Manchanda, Adv.
Respondent Advocate D.N. Aggarwal, Adv.
Cases ReferredL. Shiv Dayal Kapoor v. Union of India
Excerpt:
.....in exercising powers of superintendence under article 227 of the constitution. - these pleas were controverted by the appellants in their replication which reiterated the position taken up by them in the plaint and further stated that the mortgage and the tenancy came into existence against good consideration and that the rent note mentioned in the plaint had been held to be invalid and binding between the parties in the 'ejectment litigation. , of the oudh judicial commissioner's court held that there was abundant authority for allowing a plaintiff who failed to prove a lease, a decree on the basis of use and occupation where the defendants were proved to have held the land......dicta in rachhea singh v. upendra chandra singh, (1900) ilr 27 cal 239, which lays down that in a suit for rent when no alternative claim is made for use and occupation, no damages therefor can be decreed, and amir chand v. secy. of state, air 1936 lah 26, which follows (1900) ilr 27 cal 239 (supra) and holds that in the case of a suit for rent its nature cannot be allowed to be changed by treating it as one for damages for use and occupation in the absence of an alternative claim in that behalf. but these dicta run counter to a number of other authorities which, in my opinion, lay down the law on the point correctly and which i shall presently mention. in ajodya singh v. khusro begum, 74 ind cas 582 = (air 1924 oudh 97), ashworth, j. c., of the oudh judicial commissioner's court held.....
Judgment:

1. The suit out of which this appeal has arisen was brought by the appellants for the recovery of Rs. 576/- on account of arrears of 'rent and compensation for use' of 3/4th share in a house situated in Mohalla Bhandari of Batala town for a period of three years ending with the 16th of February, 1958, against Kalu Ram respondent No. 1. It was alleged in the plaint that on the 17th of December, 1938, the said share was taken by respondent No. 1 on a rent of Rs. 16/- per mensum from its mortgagees; namely, Phul Chand appellant No. 1 and Roshan Lal, the predecessor-in-interest of appellants Nos. 2 to 8 and respondents Nos. 2 to 5, under a registered rent note, that respondent No. 1 had continued to hold the property in dispute as a tenant under the appellants and respondents Nos. 2 to 5 up to the date of the suit, that he had not paid any rent for the said period of three years and that the amount in suit was, therefore, due from respondent No. 1 on account of arrears of 'rent and compensation for use.'

2. In his written statement, respondent No.1 pleaded that the mortgage and the tenancy relied upon by the plaintiffs were fictitious transactions which had been entered into without consideration, that he was in possession of the property in dispute as owner and not as a tenant under Phul Chand and Roshal Lal and that in any case the mortgage and the tenancy had been extinguished by lapse of time. It was denied that the plaintiffs were entitled to the recovery of any amount either on account of rent or of compensation for use. These pleas were controverted by the appellants in their replication which reiterated the position taken up by them in the plaint and further stated that the mortgage and the tenancy came into existence against good consideration and that the rent note mentioned in the plaint had been held to be invalid and binding between the parties in the 'ejectment litigation.'

3. On the 18th of October, 1958, Phul Chand appellant stated that respondent No. 1 had never paid any rent and on the same date the following issues were framed by the trial Court :

1. Whether the mortgage and rent note do not subsist If so, to what effect ?

2. Whether the suit is barred by time ?

3. Relief.

4. The trial Court found that the rent note in question ( a copy of which is Exhibit P-2) embodies not a fictitious but a genuine transaction which create a tenancy for a term of 11 months in favour of respondent No. 1 under Phul Chand and Roshan Lal. It was argued before it that on the expiry of the said period of 11 months the tenancy came to an end, that respondent No.1 became a trespasser by operation of clause (a) of Section 111 of the Transfer of Property Act and that the right of the plaintiffs to the property in question was extinguished 12 years later by later by virtue of the provisions of Section 23 of the Indian Limitation Act. the argument was turned down on the ground that before the expiry of the said period of 12 years, the East Punjab Urban Rent Restriction Act, 1949, came into operation since when the relations between landlords and tenants in Batala, a municipal area, began to be governed by its provisions to the exclusion of those of the Transfer of Property Act, etc. It was further held, however, that on the 11th of July, 1952, the plaintiffs obtained symbolical possession of the property in suit in execution of an order passed by a Controller on the 3rd of June, 1952, under the East Punjab Urban Rent Restriction Act in pursuance of an application made under Section 13 thereof against respondent No. 1 and that, therefore, the tenancy stood determined on the 3rd of June, 1952, although the mortgage continued to subsist even thereafter. This is how the first part of issue No. 1 was decided. With regard to the second part thereof, the trial Court held that the claim of the appellants was not only for rent but was also based on damages for use and occupation which were assessed at Rs. 16/- per mensem. Issue No. 2 was decided in the negative and, in the result, the decree prayed for was passed in favour of the appellants with costs.

5. Respondent No. 1 filed an appeal against the decree passed by the trial Court and the same was accepted by Shri G. K. Bhatnagar, Senior Subordinate Judge, Gurdaspur, who dismissed the suit with costs throughout on the grounds that no prayer for recovery of damages on account of use and occupation of the premises indispute had been made by the appellants, that the basis of the suit was the relationship of landlord and tenant between the parties that only a decree for rent could be passed if the appellants were found entitled to the same and that they not being so entitled, damages for use and occupation could not be awarded in the alternative.

6. In my view, this appeal must succeed. It is no doubt true that the suit as framed was based only on the relationship of landlord and tenant between the parties and that neither any prayer for the award of damages on account of use and occupation of the premises in dispute by respondent No. 1 was made in the plaint nor were any facts which would entitle the plaintiffs to such damages stated therein. However, during the course of evidence it was disclosed that on the 3rd of June, 1952, the plaintiffs had obtained an order of ejectment from a Controller under the East Punjab Urban Rent Restriction Act and that in execution of the same they had actually been delivered symbolical possession of the premises in dispute, so that the relationship of landlord and tenant between the parties terminated on the 3rd of June, 1952, whereafter respondent No. 1 became liable to pay to the mortgagees damages for use and occupation thereof. In this state of evidence it became the duty of the Court to grant the relief to which it found the plaintiffs entitled on the principle contained in Rule 7 of Order VII of the Code of Civil Procedure. That rule is to the following effect :

'Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.'

7. It has been contended on behalf of respondent No. 1 that the suit was expressly founded on the relationship of landlord and tenant between the parties and that no relief could be granted to the plaintiffs-appellants if the existence of that relationship for the elegant period was negatives. This contention is no doubt supported by the dicta in Rachhea Singh v. Upendra Chandra Singh, (1900) ILR 27 Cal 239, which lays down that in a suit for rent when no alternative claim is made for use and occupation, no damages therefor can be decreed, and Amir Chand v. Secy. of State, AIR 1936 Lah 26, which follows (1900) ILR 27 Cal 239 (supra) and holds that in the case of a suit for rent its nature cannot be allowed to be changed by treating it as one for damages for use and occupation in the absence of an alternative claim in that behalf. But these dicta run counter to a number of other authorities which, in my opinion, lay down the law on the point correctly and which I shall presently mention. In Ajodya Singh v. Khusro Begum, 74 Ind Cas 582 = (AIR 1924 Oudh 97), Ashworth, J. C., of the Oudh Judicial Commissioner's Court held that there was abundant authority for allowing a plaintiff who failed to prove a lease, a decree on the basis of use and occupation where the defendants were proved to have held the land.

This was also the view taken by Waller and Madhavan Nair, JJ., in Venkatachalamayya Pantulu v. Sinhadri Naidu, AIR 1926 Mad 1071, by Addision, J., in Jawahri Mal v. Jagan Nath, AIR 1930 Lah 915, and by Tek Chand and Coldstream, JJ., in Municipal Committee v. Miran Bakhsh, ILR 13 Lah 561 = (AIR 1933 Lah 15). These Authorities apparently proceed on the principle enunciated in Rule 7 above mentioned according to which, as held in Dhani Sahu v. Bhshun Prasad Singh, AIR 1942 Pat 247, by Fazl Ali, J., sitting in Division Bench, a plaintiff ought to be given such relief as he is entitled to get on the facts established on the evidence in the case even if the plaint does not contain a specific prayer for that relief. The authority last cited was followed by D. Falshaw, C. J. and Tek Chank, J., in L. Shiv Dayal Kapoor v. Union of India, AIR 1963 Punj 538.

8. For the reasons stated, I would accept this appeal and restore the decree passed by the trial Court in favour of the plaintiffs with the modification that the parties shall bear their own costs of the proceedings in all the three courts.

9. Appeal allowed.


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