1. The appellant-plaintiff, who lost in trial Court, does not dispute the finding of the trial Court that he has failed to establish relationship of licensor and licensee. However, it is contended that the trial Court has found that an interest in the premises is created and that the defendant in its written statement has admitted that its possession is unlawful and therefore decree for eviction should be passed in favour of the plaintiff. This contention is raised, although there is no such case in the pleadings of the plaintiff; no such issue is raised and that there is no such evidence also. On the contrary the plaintiff has positively asserted in his evidence that the defendant was not his tenant.
2. After having a brief resume of the facts, the contentions raised by the appellant-plaintiff may be examined.
3. The appellant-plaintiff filed a Civil Suit No. 2728 of 1970 in the City Civil Court, Ahmedabad, against the defendant-firm alleging that he himself was a tenant of the property belonging to Katpitia Mahajan, Ahmedabad, that the defendant is a grain merchant and that he allowed the defendant to use a part of this premises on the basis of the arrangement that the defendant should pay commission at the rate of 25 paise per bag sold by the defendant. It was alleged that the defendant was not entitled to keep his bags of foodgrains against the wishes of the plaintiff. Though the defendant was orally informed not to keep his goods in the premises, he did not pay heed to the same and on the contrary filed Small Cause Suit No. 490 of 1970 in the Court of Small Causes, Ahmedabad. On these and other allegations the plaintiff prayed that the defendant be restrained from placing his goods in the suit premises and be ordered to render accounts of the goods sold by the defendant so that the amount of commission at the rate of 25 paise per bag sold be recovered from him. Alternatively the plaintiff prayed that, in case the possession of the defendant is proved over the premises, the defendant be ordered to be evicted and the possession thereof be given to the plaintiff.
4. The suit was resisted by the defendant-firm on facts as well as on law points. It was inter alia contended that the real nature of the relationship between the parties was that of a landlord and a tenant and that the defendant was in possession of the premises as of right as a tenant.
5. The trial Court, after recording evidence and after hearing the parties, came to the conclusion that the plaintiff has not been able to establish that the defendant was in possession of the premises by his permission. The trial Court came to the conclusion that the relationship of licensor and licensee between the parties as contended by the plaintiff was not proved. The trial Court also came to the conclusion that the arrangement for payment, of so-called commission was not in fact commission, but was, as a matter of fact, rent. The trial Court came to the conclusion that the defendant had got exclusive possession of the suit premises and therefore there was an interest created by the plaintiff in favour of the defendant. The trial Court by its judgment and order dated August 6, 1976 ordered to dismiss the suit.
6. In the present appeal, the plaintiff has not challenged the finding arrived at by the trial Court to the effect that the plaintiff has not been able to prove 'the relationship of licensor and licensee. However, it is contended that the possession of the defendant is unlawful even as a' tenant and therefore the defendant should be ordered to be evicted and decree for possession should be passed in favour of the plaintiff. This contention is sought to be based on certain averments in the written statement filed by the defendant and on the basis of the finding arrived at by the trial Court The plaintiff relies upon the following averments in para 10 of the written statement filed by the defendant:
( Editor: The vernacular matter printed hereunder has been omitted).
7. From the aforesaid averments made in the written statement, it is sought to be contended that the defendant has admitted that he is in possession of the premises as an unlawful tenant.
8. The method of construction suggested by the plaintiff runs counter to the cardinal principles of interpretation of pleadings. The pleadings cannot be compartmentalised, dissected, segregated and then read, The correct method of reading the pleading is that the pleadings have got to be read as a whole to ascertain its true import. In this connection reference may be made to the decision of the Supreme Court in the case of Udhay Singh v. Madhav Rao Scindia, reported in AIR 1976 SC 744, wherein it is held that it is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. It is further held that the intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.
9. If one reads the entire written statement filed by the defendant, it is difficult to spell out any admission as contended by the plaintiff. In para 10 of the written statement, the defendant has first denied the statements and averments made in para 3 of the plaint. In para 3 of the plaint, the plaintiff has made statements and averments with regard to the so called arrangement of payment of commission at the rate of 25 paise per bag sold by the defendant and on that basis the defendant having been allowed to keep the goods in the premises. This averment is denied and then it is stated that the defendant is in possession of the premises as of right as tenant. Then it is further stated that the defendant is in exclusive possession of the premises and that the plaintiff was never in possession of these premises and that other persons are also, given the premises on, lease and they are in possession of the premises as tenants, It was further averred that the so called arrangement of payment of commission per bag sold, was, totally false and while denying the statements and averments with regard, to the payment of commission on the basis of the bills, the defendant has stated further that the object of the plaintiff in adopting such device was to eschew the provisions of the Rent Act and then it is stated that, all the statements and averments made by the plaintiff are false.
10. If the aforesaid averments are readin proper context, it is difficult to read anyadmission as is sought to be contended bythe plaintiff. Even if one reads the aforesaid averments in isolation and without context, it can never be said that the defendanthas unequivocally admitted to the effect thatit is in possession of the premises as an unlawful tenant.
11. It was then contended that in paragraphs 30 and 31 of the judgment, the trial Court came to the conclusion that the relationship between the parties was not that of a licensor and licensee and that the defendant was in exclusive possession which led to the conclusion that it was in the nature of an interest created by the plaintiff in favour of the defendant over that much area of the property. In view of the finding, it was sought to be contended by the plaintiff that this is a finding by which the trial Courtcame to the conclusion that the defendant was in possession of the premises as an unlawful tenant. By no stretch of reasoning it can be inferred that the trial Court cams to the conclusion that the possession of the defendant of the premises was unlawful. The trial Court came to the conclusion that the plaintiff has failed to prove that the defendant was a licensee. The trial Court has gone thus far and nothing further. On this point i.e. alleged unlawful nature of possession of the defendant, as tenant there was no pleading, no issue and no evidence was led by the parties and therefore the trial Court was never called upon to give any finding on this point. Therefore the contention based, on the finding arrived at by the trial Court also fails.
12. The appellant-plaintiff sought to rely upon the following observations from the decision of the Supreme Court in the case of firm Srinivas Ram Kumar v. Mahabir Prasad, reported in AIR 1951 SC 177 (para 9):
'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. Ordinarily, 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 had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendants 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 when 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.' It was a case for specific performance of a contract. Therein the defendant denied to have received any amount as consideration towards the part performance of the contract, but made certain admissions about having received the amount as loan. In such circumstances, the Supreme Court came to the conclusion that on the basis of the admission made by the defendant, a money decree can be passed even though the plaintiff had failed to plead and claim alternative relief. Thus it is one thing to decree a suit for money on the basis of admission where the specific performance of the contract cannot be granted; and it is another thing to decree a suit where the case regarding the nature of unlawful possession is not even placed by the plaintiff in his pleadings, not it is admitted by the defendant in his written statement. In that case the question was as to whether alternative relief can be granted although there may not be pleadings in this behalf. In this case, the relief claimed by the plaintiff is the same. The plaintiff wishes to place an alternative case. Moreover, in a case before an ordinary Civil Court, it would not have been possible for the plaintiff to put his case raising questions between landlord and tenant. Therefore the plaintiff could never have raised such inconsistent plea in a suit for possession filed in an ordinary Civil Court In this case, the parties were not conscious about the new case which is being sought to be raised by the plaintiff. Therefore it cannot be said that the defendant would not be taken by surprise.
13. As stated above, there is no admission on the part of the defendant in this case. However, assuming that such an admission, as contended by the plaintiff is possible to be culled out from the written statement of the defendant, even then the plaintiff cannot be permitted to take advantage of the same in a suit for possession filed in a Court of ordinary civil jurisdiction. I As held by the Supreme Court in this very case, the plaintiff may not be driven to file a separate suit only when no injustice is likely to be caused to the defendant. In a suit for possession before an ordinary Civil Court, the defendant-tenant will lose an opportunity to raise various possible defences including the plea to determine standard rate of rent. Moreover, if the plaintiff is allowed to take advantage of such so-called admission of the defendant, in many cases the defendant may be evicted, which would amount to economic death penalty. Can it ever be said that eviction of premises -- an economic death penalty -- would not result into any injustice to the other side? In this view of the matter, on facts and on principle, the decision cited by the appellant-plaintiff is of no help to him.
14. The plaintiff next relied, upon the decision of this Court in First Appeal No. 382 of 1975 decided on 14/15th Oct,
1980* (Coram N. H. Bhatt & S. L. Talati, JJ.) In that case the trial Court believed the case of the plaintiff that the defendant was a licensee and decreed the suit of the plaintiff. But in appeal, the High Court came to the conclusion that the case of the plaintiff that there was relationship of licensor and licensee was not believable. The High Court did not uphold the case of the plaintiff with regard to the arrangement of commission. However, in that case the defendant sought an amendment of the written statement and sought an issue at the appellate stage which reads as follows:
'Whether the defendants proved that the alleged sub-lease was created as per the contract between the plaintiff and their landlords and hence it was not hit by Section 15(1) of the Bombay Rent Act?' After appreciation of additional evidence led, the Court came to the conclusion that the defendant was in possession as an unlawful subtenant and on that basis the Court maintained the decree of eviction passed by the trial Court. Here in this case, there is no such pleading, no issue and no evidence. The sole reliance placed by the plaintiff is on the so-called admission of the defendant in the written statement referred to hereinabove; and on the finding given by the trial Court. In this case the plaintiffs case was that the defendant was a licensee and was using the premises by his permission. The plaintiff has in his evidence positively asserted that the defendant was not his tenant. In terms he has stated in para 18 of his deposition that it was not true that the defendant was a tenant and the rate of rent was Rs. 3,000/- per year. However, he admitted to have withdrawn Rs. 13,000/-deposited by the defendant in fie Small Cause suit. In view of this state of facts and circumstances of this case, the decision of this High Court in First Appeal No. 382 of 1975 is of no help to the plaintiff.
15. The plaintiff relied upon the decision of the Bombay High Court in the case of H. H. Sir Jiwanjirao Scindia v. Muzammil Khurshid, reported in (1957) 59 Bom LR 1011. In that case, the head tenant filed a Slit against his sub-tenant and the Court negatived the plea of the defendant (subtenant) holding that the maxim pari delicto melior est conditio possidentis would not be applicable. In that case the Bombay High Court came to the conclusion that in such cases the ordinary Civil Court will have jurisdiction to entertain and decide the suit.
It was contended that this case was approvingly referred to by the Division Bench of this High Court while deciding First Appeal No. 382 of 1975. But reference to this case is not at all relevant for the simple reason that, in the facts and circumstances of this case, there does not arise any question regarding the jurisdiction of the trial Court to decide the case. However, it must be pointed out that the question of jurisdiction of an ordinary Civil Court to decide the questions between landlord and tenant was not raised at all before the Division Bench of this High Court in First Appeal No. 382 of 1975. Moreover when the Bombay High Court decided the aforesaid case, the words 'subject to any contract to the contrary' were not there in Section 15(1) of the Bombay Rent Act. Bat as stated hereinabove, the question does not arise before us and hence we do not propose to deal with this decision in details.
16. Realising the aforesaid difficulties during the course of arguments, the appellant-plaintiff submitted an application for amendment of the plaint and sought to introduce para 5A in the plaint to the effect that alternatively the so-called right of the defendant as sub-tenant or any other right regarding the suit premises, is unlawful and the same being against the provisions of law, possession of the defendant is unlawful. This application for amendment has been stoutly opposed by the other side. Assuming that the amendment application is allowed, what would be the position? The first step would be that this paragraph will have to be inserted in the plaint; then the plaint would definitely read some averments which pertain to the question to be decided between the landlord and tenant in view of the fact that a head tenant is also a landlord as per the definition given in Section 5(3) of the Bombay Rent Act. Therefore the question as to whether an ordinary Civil Court will have jurisdiction to entertain and decide such question will arise. What will definitely lead to complications. Moreover, the prayer for amendment is given at a very late stage, that is, at the appellate stage, and at the time of the final hearing of the appeal. This appeal was admitted by the Court on March 2, 1977. Thereafter in the year 1983 this amendment application is sought to be given at the time of the final hearing of the appeal. Delay alone would not have deterred us from granting the application for amendment. But by this amendment a totally a new ease is sought to be Made out. So far, the case of the plaintiff was that the defendant was his licensee. The plaintiff in his evidence positively asserted that the defendant was not his tenant Now the plaintiff wants to aver that, even if the defendant is a tenant, his possession is unlawful and therefore decree be given in favour of the plaintiff. This is not only a new case but inconsistent with the plainliff's own averments and evidence given on oath. Such an amendment is likely to cause prejudice to the other side and the other tide is likely to be placed in an embarrasing situation also. Moreover, if the amendment is allowed, it is likely that new evidence also may be required to be led. Thus it is likely to create complications and may even lead to multiplicity of proceedings. Hence the application for amendment is rejected.
17. No other submissions were made Hence the appeal is ordered to be dismissed with cost. In view of the reasons mentioned in the judgment, the civil application for amendment of the plaint is also rejected. The counsel for the appellant-plaintiff prays for leave to appeal to the Supreme Court. In this case, no question of law of general Importance is involved, which, in the opinion of this Court, needs to be decided by the Supreme Court. Hence certificate is refused.