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New Shorock Mills Division of Mafatlal Industries Ltd. Vs. Somabhai Mathurbhai Patel - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 2084 of 1981
Judge
Reported inAIR1983Guj21; (1983)1GLR172
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1) and 28; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 7; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 32G, 70 and 71; Presidency Small Cause Courts Act, 1882 - Sections 53
AppellantNew Shorock Mills Division of Mafatlal Industries Ltd.
RespondentSomabhai Mathurbhai Patel
Appellant Advocate Arun H. Mehta, Adv.
Respondent Advocate S.D. Patel, Adv.
DispositionRevision allowed
Cases ReferredNarayanprasad Haribhai Majunidar v. Merubhai Rayabhai
Excerpt:
.....to hand over vacant possession of the premises in his occupation (hereinafter referred to as the 'suit premises') to the petitioner on or before january 31, 1978. the respondent, however, failed to deliver possession of the suit premises to the petitioner. he allowed the appeal and dismissed the petitioner's suit holding that since the petitioner had failed to prove that the respondent was its licensee, no relief could have been granted to the petitioner. patel submitted that the trial court had entertained the suit of the petitioner in the exercise of its ordinary civil jurisdiction and not in exercise of the power or jurisdiction conferred upon it under section 28 of the act and therefore, when it came to the conclusion that the petitioner had failed to establish that the respondent..........to hand over vacant possession of the premises in his occupation (hereinafter referred to as the 'suit premises') to the petitioner on or before january 31, 1978. the respondent, however, failed to deliver possession of the suit premises to the petitioner. petitioner, therefore, filed a suit being regular civil suit no. 348 of 1978 in the court of civil judge, senior division at nadiad for recovery of possession of the suit premises from the respondent and mesne profits. the defence of the respondent was that he was a tenant and not a licensee as alleged by the petitioner in the suit premises. in substance the respondent's contention was that he was a tenant entitled to the protection under the act and the petitioner was not entitled to recover possession of the suit premises from him.....
Judgment:
ORDER

R.C. Mankad, J.

1. Can the petitioner, who by invoking ordinary civil jurisdiction of the Court had sought possession of the premises in occupation of the respondent alleging that the respondent was a mere licensee whose licence was terminated, ask the Court to decree his claim for possession in exercise of jurisdiction conferred upon it under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Act') on the basis that relationship between it (petitioner) and the respondent was that of landlord and tenant governed by the provisions of the Act? 1 am called upon to answer this question in this revision application in the background of the following facts.

2. Petitioner is a public limited Company. The respondent was in its employment and it is alleged that the respondent was given premises in one of the properties owned by the petitioner for his use and occupation at a licensee on account of big employment with the petitioner. The respondent retired from service and the petitioner terminated

the licence and called upon the respondent to hand over vacant possession of the premises in his occupation (hereinafter referred to as the 'suit premises') to the petitioner on or before January 31, 1978. The respondent, however, failed to deliver possession of the suit premises to the petitioner. Petitioner, therefore, filed a suit being Regular Civil Suit No. 348 of 1978 in the Court of Civil Judge, Senior Division at Nadiad for recovery of possession of the suit premises from the respondent and mesne profits. The defence of the respondent was that he was a tenant and not a licensee as alleged by the petitioner in the suit premises. In substance the respondent's contention was that he was a tenant entitled to the protection under the Act and the petitioner was not entitled to recover possession of the suit premises from him except as provided under the Act. It was further contended by the respondent that since the petitioner had invoked the ordinary civil jurisdiction of the Court, claiming possession of the suit premises on the ground of termination of the licence, the Court had no jurisdiction to decree the petitioner's claim for possession.

3. The learned trial Judge, by her judgment and decree dated December 31, 1979, upheld the respondent's contention that he was petitioner's tenant in the suit premises. She. however, held that the petitioner was entitled to recover possession of the suit premises from the respondent under Section 13(1)(f) of the Act inasmuch as the suit premises were let out to the respondent for use as a residence by reason of his being in the employment of the petitioner and the respondent had ceased to be in such employment on his retirement from the petitioner's service. Consequently, the learned trial Judge decreed the petitioner's suit. Feeling aggrieved by the decree passed by the learned trial Judge, the respondent went in appeal before the District Court at Nadiad. The learned Extra Asstt. Judge, Nadiad, who heard the appeal, confirmed the finding of the learned trial Judge that the respondent was the petitioner's tenant. He allowed the appeal and dismissed the petitioner's suit holding that since the petitioner had failed to prove that the respondent was its licensee, no relief could have been granted to the petitioner. In other words, according to the learned Judge, once it is held that the respondent is a tenant and not the licensee as claimed by the petitioner, the case would be governed by the provisions of the Act and no decree could have been passed in the present suit, which was filed on the ground that the res-

pondent was petitioner's licensee. Petitioner has preferred this revision application challenging the view taken by the learned Judge,

4. Mr. Arun H. Mehta, learned Counsel for the petitioner did not challenge the finding recorded by the lower Courts that the respondent was the petitioner's tenant. In other words, he did not dispute that the agreement Exh. 27 which the petitioner had alleged to be a leave and licence agreement had created a lease in favour of the respondent. Mr. Mehta, however, submitted that the respondent's suit cannot be dismissed merely because the respondent is held to be a tenant governed by the provisions of the Act and not a licensee as claimed by the petitioner. He submitted that the learned appellate Judge ought to have adjudicated the petitioner's claim for possession in the light of the provisions of the Act. According to Mr. Mehta, no question of jurisdiction of the trial Court would arise since the same Court, namely the Court of Civil Judge, Senior Division, at Nadiad was conferred jurisdiction under Section 28 of the Act to determine the claim for possession under the provisions of the Act. Therefore, submitted Mr. Mehta, the trial Court had rightly decreed the petitioner's suit in exercise of its power and jurisdiction under Section 28 of the Act and the learned appellate Judge erred in not examining the petitioner's claim for possession in the light of the provisions of the Act.

5. Mr. S. D. Patel, learned Counsel for the respondent, on the other hand, urged that the trial Court could not have exercised jurisdiction under Section 28 of the Act as the suit was not filed under the provisions of the Act. Mr. Patel submitted that the trial Court had entertained the suit of the petitioner in the exercise of its ordinary civil jurisdiction and not in exercise of the power or jurisdiction conferred upon it under Section 28 of the Act and therefore, when it came to the conclusion that the petitioner had failed to establish that the respondent was its licensee, the only course open to the trial Court was to dismiss the petitioner's suit. Mr. Patel submitted that it was never the case of the petitioner that the respondent was its tenant. The Court cannot grant relief to the petitioner on a case for which there was no foundation in the pleadings. In any case, the Court cannot, in exercise of its ordinary civil jurisdiction, decree the petitioner's claim under the provisions of the Act.

6. In Firm Sriniwas Ram Kumar v. Mahavir Prasad, AIR 1951 SC 177, the ap-

pellant plaintiff before the Supreme Court filed a suit for specific performance of contract of sale of a house. The defendants contended that they never agreed to sell their house. According to them, they were in need of money and hence approached the plaintiff for a loan and the plaintiff advanced to them a sum of Rs. 30,000 carrying interest at 6 per cent per annum. It was entirely for facilitating payment of interest due on this loan and not in part performance of the contract of sale that the plaintiff was put in possession of the house. The learned trial Judge believed the case of the defendants that the plaintiff advanced a sum of Rupees 30,000 to the defendants but this was by way of a loan and not a part payment of the consideration money and dismissed the plaintiff's suit for specific performance but as the defendants admitted that they had taken an advance of Rs. 30,000 from the plaintiff, a money decree was passed in favour of the plaintiff and against the defendants for this sum of Rs. 30,000 with interest at 6 per cent per annum from the date of suit till realisation. The plaintiff carried the matter in appeal before the High Court at Patna and the defendants also filed cross-objections challenging the propriety of the money decree that was passed against him. The High Court agreed with the trial Judge in holding that the sum of Rs. 30,000 was advanced as a loan by the plaintiff to the defendants. However, the High Court took the view that the money decree granted against the defendants was not warranted in law as no case of a loan was made by the plaintiff in the plaint and no relief was claimed on that basis. Consequently, the High Court dismissed the suit in its entirety and the decree for recovery of money that was made in favour of the plaintiff by the trial Court was set aside. It was against this decision of the High Court, that the appeal was preferred before the Supreme Court by the plaintiff. The Supreme Court held that the decision of the trial Court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the trial Court. The Supreme Court observed : 'It is true that it was no part of the plaintiff's case as made in the plaint that the sum of Rs. 30,000/- was advanced by way of loan to the defendants, second party. But it was certainly open to the plaintiff to make aa alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be

established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to givo him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or bad an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise also they were expressly admitted by the defendant in his pleadings, In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.'

7. In the instant case, the petitioner no doubt has not pleaded an alternative case to the effect that the respondent was its tenant. Petitioner sought to recover possession of the suit premises on the ground that the respondent was its licensee, and his licence to use and occupy the suit premises came to be terminated on his retirement from its service. It, however, cannot be gainsaid that the petitioner could in the alternative have pleaded that even if the relationship between it and the respondent was held to be that of a landlord and tenant governed by the provisions of the Act, it was entitled to recover possession of the suit premises from the respondent under Section 13(1)(f) or any other relevant provision of the Act. As observed by tie Supreme Court in Mahavir Prasad's case (AIR 1951 SC 177) (supra), the fact that such a prayer on the basis of relationship of landlord and tenant would have been inconsistent with the prayer for possession on the basis of relationship of a licensor and licensee, is not really material. A plaintiff may rely upon different grounds alternatively and there is nothing in the Civil

Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. As observed by the Supreme Court, the question is whether in the absence of any such alternative case in the plaint, it is open to the Court to give the plaintiff relief on that basis. The rule undoubtedly js that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the ether side was not called upon or had an opportunity to meet; but when the alternative case, which the petitioner could have pleaded was not only admitted by the respondent in his written statement, but was expressly put forward as an answer to the claim which the petitioner made in the suit, there would be nothing improper in giving the, petitioner a decree upon the case which the respondent himself makes. Petitioner could, in the alternative have pleaded that the respondent was its tenant and prayed for possession of the suit premises on the ground that it was entitled to recover possession of the suit premises under the provisions of the Act. In the facts and circumstances of the case, when no injustice can possibly result to the respondent, it may not be proper to drive the petitioner to a separate suit.

8. The question, however, still remains: whether the petitioner who had claimed pos-ression of the suit premises by invoking ordinary civil jurisdiction of the Court, can in the alternative, plead that the respondent was its tenant and claim possession of the suit premises under the provisions of the Act. In other words, the question is whether the Court, whose ordinary civil jurisdiction is invoked, can exercise jurisdiction conferred upon it under Section 28 of the Act and decree the petitioner's claim for posses-sion in the light of the provisions of the Act. In Khemchand v. Mohmadbhai, (1970) 11 Guj LR 173 : (AIR 1970 SC 102), the Supreme Court rejected the contention that Section 28 of the Act sets up new set of Courts with special powers and jurisdiction. It was held that Section 28 merely confers upon the existing Courts exclusive jurisdiction in respect of the matters relating to the possession of the premises and recovery of rent and to determine the claims and questions arising under the Act. On that account, it does not become a special Court. Jt is a Court which it competent to exercise all the powers which are conferred upon it by virtue of its constitution under the Statute

which governs it. The question which arose before the Supreme Court was whether the Court of Small Causes at Ahmedabad, while exercising jurisdiction conferred upon it under Section 28 of the Act, was competent to issue distress warrant in exercise of power conferred by Section 53 of the Presidency Small Cause Courts Act 1882. It was in the context of this question that the Supreme Court, as pointed out above, held that Section 28 does not set up a new set of Courts with special powers and jurisdiction but merely confers upon the existing Court an exclusive jurisdiction in respect of matters relating to possession of premises etc. and the questions arising under the Act. The Supreme Court held that the Court of Small Causes at Ahmedabad had, therefore, power to issue distress warrant and that power could be exercised even in respect of the suits and proceedings which were exclusively triable by it by virtue of the provisions of the Act Applying the ratio of the decision of the Supreme Court in Khemchand's case (supra), there is no doubt that the trial Court was competent to pass appropriate orders in exercise of the powers and jurisdiction conferred upon it under Section 28 of the Act even in respect of the suits and proceedings of which it was seized in exercise of its ordinary civil jurisdiction. In other words, the trial Court, while exercising its ordinary civil jurisdiction, could exercise powers conferred upon it under Section 28 of the Act. There are no two different Courts operating in different fields. It is the same Court, which is conferred jurisdiction to exercise ordinary civil jurisdiction and the jurisdiction under Section 28 of the Act. Since the same Court was exercising ordinary civil jurisdiction and the jurisdiction under Section 28 of the Act, the petitioner could have pleaded an alternative case that the respondent was its tenant and prayed for recovery of possession of the suit premises on any ground available to it under the provisions of the Act. There is nothing in law which precludes the petitioner from raising such an alternative plea and seeking assistance of the Court for grant of the relief in exercise of the powers and jurisdiction conferred upon it under Section 28 of the Act.

9. The view which I am inclined to take derives support from a decision of this Court in Narayanprasad Haribhai Majunidar v. Merubhai Rayabhai, (1967) 8 Guj LR 897. In that case, the question which came up for consideration before the Court was whether the Agricultural Lands Tribunal constituted under the Bombay Tenancy and

Agricultural Lands Act, 1948 (herematter referred to as the 'Tenancy Act') had jurisdiction to determine the question whether a person is a tenant or not Jurisdiction of the Agricultural Lands Tribunal to determine that question was excluded by necessary implication by Section 70(b) of the Tenancy Act, but the notification dated 9th July, 1960, made a vital difference in the position and by reason of the notification, the Agricultural Lands Tribunal was invested with jurisdiction to determine the above question. The notification conferred power on the Agricultural Lands Tribunal to discharge the functions of a Mamlatdar within the area over which it had jurisdiction. After the issue of the notification, the Agricultural Lands Tribunal was clothed with the powers of the Mamlatdar, and the Agricultural Lands Tribunal had jurisdiction to decide all questions which could be decided by the Mamlatdar, including the question whether a person is a tenant or a protected tenant or a permanent tenant under Section 70(b) of the Tenancy Act. It was held by this Court that the Agricultural Lands Tribunal had jurisdiction to decide whether a person is a protected tenant or a permanent tenant, when such a question arises in a proceeding under Section 32G of the Tenancy Act and an application under Section 71 of the said Act was not necessary for determination of that question. In other words, when the same authority was exercising powers and functions of the Agricultural Lands Tribunal and the Mamlatdar and a question which was required to be decided by the Mamlatdar arises before it in a proceeding pending before it, as Agricultural Lands Tribunal, it was competent for it to decide such a question. A fortiori, the Court entertaining a suit in exercise of its ordinary civil jurisdiction, can determine questions arising under the Act, if it is conferred with jurisdiction to deal with and determine the questions arising under the Act.

10. Mr. S. D. Patel, learned counsel for the respondent, however, strongly relied on a decision of the Supreme Court in Raizada Topandas v. M/s. Gorakhram Gokalchand, AIR 1964 SC 1348, and urged that if a plaintiff frames his suit in a manner not warranted by facts and goes for his relief to a Court which cannot grant him relief on the true facts, he will have his suit dismissed. The petitioner in the instant case came to the Court and sought relief on the ground that the respondent was a licensee and he had become liable to hand over possession of the suit premises as his licence was ter-

minated. It was on account of the allegations made in the plaint that the petitioner had instituted the suit in the trial Court in exercise of its ordinary civil jurisdiction-Mr. Patel submitted that the petitioner can succeed only if it establishes the facts on the basis on which it approached the Court for the relief. If it fails to establish these facts, it must fail and its suit deserved to be dismissed. It cannot take shelter under the defence of the respondent and pray for relief of possession, contending that even if the respondent was a tenant governed by the provisions of the Act, it was entitled to claim possession from him. According to Mr. Patel a suit which is essentially one between the landlord and tenant does not cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way, a suit which is not between the landlord and tenant, and in which judging by the plaint no claim or question arises out of the Rent Act or any of its provisions does not become a suit covered by the provisions of Section 28 of the Act as soon as the defendant raises a contention that he is a tenant. Therefore, according to Mr. Patel, in order to be entitled to a decree for possession, it was incumbent upon the petitioner to prove the case set up in the plaint, and if it fails to do so, as held by the learned appellate Judge, its suit deserved to be dismissed. I am afraid, the ratio of the decision of the Supreme Court in Topan-das's case does not advance the respondent's case any further. The question before the Supreme Court in that case was entirely different. In that case, the respondent before the Supreme Court had instituted a suit in the Bombay City Civil Court in which it appears to have asked (i) for a declaration that it was in lawful possession, of a shop in Mulji Jetha Market; and that the appellants or their family members, servants or agents had no right to enter into or remain in possession of the said shop; (ii) for an injunction restraining the appellants, their family members, servants and agents from entering into the said shop; and (iii) for an amount of commission payable to it under an agreement dated June 23, 1955. The plaint proceeded on the footing that during the period of the agreement the appellants were mere licensees and after expiry of the agreement, they were trespassers, and had no right to be in the shop. Plaint in terms negatived any relationship of landlord and tenant between the parlies to the suit. The substantial defence of the appellants was that the respondent had sublet the shop to the appel-

lants at a monthly rent of Rs. 500/-. In other words, according to the appellants, the true relationship between the parties was that of a landlord and tenant. On these averments in the written statement, the appellants took the plea that the question involved in the suit related to the possession of the premises as between the landlord and his tenant and the Court of Small Causes Bombay alone had the jurisdiction to try the suit. The Supreme Court upholding the decision of the High Court, held that in order to decide whether a suit comes within the purview of Section 28 of the Act what must be considered is what the suit as framed in substance is and what the relief claimed therein is. If the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of claim which arises out of the Act or any of its provisions, then only and not otherwise will it be covered by Section 28. It was in that context that the Supreme Court approved the following observations of the High Court (at p. 1354) :

'A suit which is essentially one between the landlord and tenant does not cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way, a suit which is not between the landlord and tenant and in which judging by the plaint no claim or question arises out of the Rent Act or any of its provisions does not become a suit covered by the provisions of Section 28 of the Act as soon as the defendant raises a contention that he is a tenant.'

The Supreme Court, therefore, held that in view of the averments made and relief claimed in the plaint, the City Civil Court had jurisdiction to entertain the suit. The Supreme Court has no doubt observed in its decision that if a plaintiff frames his suit in a manner not warranted by facts and goes for his relief to a Court which cannot grant him relief on the true facts, he will have his suit dismissed. But I am unable to see how these observations can be of any assistance to the respondent. On the contrary, these observations indicate that if the plaintiff has gone for his relief to the Court which could grant him relief on the true facts, he could be granted relief. In the instant case, the petitioner approached the Court which exercises both ordinary civil jurisdiction and jurisdiction conferred on it under Section 28 of the Act. Consequently, if on the true facts, the petitioner is entitled to a relief of possession under the provisions of the Act, the Court would be competent to grant such relief in

exercise of its jurisdiction under Section 28 of the Act.

11. The next judgment on which Mr. Patel relied was decision of M. C. Trivedi, J. in Second Appeal No. 282 of 1972 decided on Sept. 23/30, 1977. Relying on this decision, Mr. Patel urged that even if the Court exercising ordinary civil jurisdiction is invested with jurisdiction under Section 28 of the Act, the suit instituted in the Court in exer- cise of its ordinary civil jurisdiction cannot be disposed of by that Court in exercise of its jurisdiction under Section 28 of the Act. It was urged that if the ratio of the decision of M. C. Trivedi, J. is applied to the facts of the instant case, the plaint should be ordered to be returned to the petitioner for presentation to the Court in exercise of its jurisdiction under Section 28 of the Act. The decision of M. C. Trivedi, J., undoubtedly supports the view canvassed by Mr. Patel, but I find that the attention of M. C. Trivedi, J. was not drawn to the decision of the Supreme Court in Khemchand's case (AIR 1970 SC 102) (supra). In my opinion, the view taken by M. C. Trivedi, J. that there were two Courts -- one exercising ordinary civil jurisdiction and another exercising jurisdiction under Section 28 of the Act, though presided over by the same Judge -- with respect, does not seem to be correct. As held by the Supreme Court, Section 28 merely confers upon the existing Courts exclusive jurisdiction in respect of the matters relating to possession of the premises and recovery of rent and to determine the claims and questions arising under the Act. I, therefore, find myself unable to agree with the view taken by M. C. Trivedi, J. Since the question is directly covered by the decision of the Supreme Court, I do not see any reason to make a reference to a larger Bench as suggested by Mr. Patel.

12. It was open to the petitioner to plead an alternative case that the respondent was its tenant and it was entitled to recover possession of the suit premises from him under the provisions of the Act. As in the case of Mahavir Prasad (AIR 1951 SC 177) (supra), alternative case which the petitioner could have made was not only admitted by the respondent in his written statement, but was expressly put forth as an answer to the claim which the petitioner made in the suit. Therefore, there would be nothing improper in giving petitioner a decree upon the case which the respondent himself makes. When no injustice can possibly result to the respondent, there is no point in driving the petitioner to a separate suit.

13. In the light of the above discussion, it must be held that the petitioner is entitled to claim a decree for possession, if he is so entitled under Section 13(1)(f) or any other relevant provisions of the Act. The learned appellate Judge has, therefore, committed grave error of law in non-suiting the petitioner on the ground that it has failed to prove the fads stated in the plaint on the basil of which it had sought the relief of possession of the suit premises. The learned appellate Judge ought to have adjudicated the petitioner's claim for possession of the suit premises in the light of the provisions of the Act. I, however, find that the learned appellate Judge has not considered the petitioner's claim for possession on merits under the provisions of the Act. Therefore, the proper course to adopt is to send the matter back to the learned appellate Judge for redeciding the claim of the petitioner for possession of the suit premises in accordance with the provisions of the Act.

14. In the result, this revision application is allowed. The judgment and order passed by the learned Extra Assistant Judge, Nadiad, dismissing the petitioner's suit are set aside and the matter is remanded to the Appellate Court for fresh disposal in accordance with law in the light of the ob-servations made above.

15. Rule made absolute with no order as to costs.


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