Full Judgment Text
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PETITIONER:
CHANDER KALI BAI & ORS.
Vs.
RESPONDENT:
JAGDISH SINGH THAKUR
DATE OF JUDGMENT06/10/1977
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
SINGH, JASWANT
CITATION:
1977 AIR 2262
CITATOR INFO :
D 1977 SC2270 (4)
ACT:
Madhya Pradesh Accommodation Control Act 1961, ss. 2(1), 12
(1) (f), 13(1)-A decree for damages can be awarded not from
the date of termination of the contractual tenancy but only
from the date when an eviction decree is passed.
New plea-A plea of defence not taken at trial stage cannot
be permitted to be taken at appellate stage.
Words and phrases, "his business" and "of his own in his
occupation" occurring in s. 12(1)(f) of the Madhya Pradesh
Accommodation Control Act, 1961, meaning of.
HEADNOTE:
A shop where Bhojnalaya was being run by the appellants-
tenants was demised to their predecessors-in-interest for
the said purpose by the father of plaintiff-respondent No. 1
in the year 1951 on a monthly rent of Rs. 50/-. The father
of the plaintiff-respondent No. 1 was running a sweetmeat
shop in a rented premises, the rent of which was Rs. 225/-
per mensem. The plaintiff’s father died in 1970. Some time
later the original tenant also died. He had paid rent up to
September, 1972. The plaintiff served a notice on the
defendants terminating the contractual tenancy with effect
from 31-12-1972 and filed a suit an 8-3-1973 for eviction on
the ground of bona fide necessity of the plaintiff, for
arrears of rent amounting to Rs. 150/- for October, November
and December 1972 and damages for the months of January and
February 1973 at Rs. 225/- per mensem as also future damages
till the delivery of the possession. The trial court
dismissed the suit holding that the plaintiff did not
require the sweet-shop bona fide for his personal necessity,
On appeal by the plaintiff, the first appellate court by its
judgment dated 11-8-75, taking a contrary view, decreed the
suit for eviction, arrears of rent anti also for past and
future damages at Rs. 125/- per month to be payable on and
from 1-1-1973 until delivery of the vacant possession to the
plaintiff. The High Court in second appeal affirmed the
decree.
Allowing the appeal by special leave in part, the Court,
HELD : (1) Where a claim has never been made in the defence
presented, no amount of evidence can be looked into upon a
plea which was never put forward. If it could be so even at
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the trial stage, undoubtedly such a new question of fact
could not be entertained at in appellate stage.
In this case, neither any issue was struck nor was any
evidence adduced by the parties on the question. The case
Pr to trial on the admitted footing that the business which
the plaintiff wanted to shift to the suit shop was his
business. In such a situation it was not open to the
appellants to take a stand at a very late stage of the
litigation that the sweetmeat shop was the business of the
joint family of the plaintiff and, therefore, not the
plaintiff’s business to come within the meaning If clause
(f) of sub-s 1 of s. 12 of the Madhya Pradesh Accommodation
Control Act, 1961. [627H, 628A-D]
Siddik Mohommed Shah v. Mt. Saran and Ors. 1930 PC 57(1);
Bhagat Singh & Ors. v. Jaswant Singh A.I.R. 1966 SC 1861 and
Bachan Singh v. Dhian Dass & Ors. AIR 1974 SC 708,
applied.
(2)A tenanted shop in mere occupation of the landlord
filing a suit for eviction against his tenant was sufficient
to deny him a decree on the ground of clause(h) of s.- 4 of
the Madhya Pradesh Accommodation Control Act 1955 where the
expression used was that the landlord "is not in occupation
of any other accommodation in the city or town for that
purpose". But, under the
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1961 Act, mere occupation of another premises is not
sufficient in view of the clear departure made by using the
phraseology in the second part of cl. (f) of s. 12(1), "the
landlord has no- other reasonably suitable non-residential
accommodation of his own in his occupation in the city or
town concerned". The premises must be his own meaning
thereby that they must be owned by or belong to the landlord
and he must be in occupation of the same. In the instant
case, the tenanted shop in occupation of the plaintiff was
not sufficient to deny him a decree for eviction against his
tenant u/s. 12(1) (f) of the Act.[628E-F]
(3)As per the widened definition of "tenant’ in s. 2(1) of
the Madhya Pradesh Accommodation Control Act, 1961, a tenant
even after the termination of his contractual tenancy does
not become an unauthorised occupant of the accommodation but
remains a statutory tenant. A person continuing in
possession of the accommodation even after the termination
of his contractual tenancy is a tenant within the meaning of
the Act and on such termination his possession does not
become wrongful until and unless a decree for eviction is
made. If he continues to be in possession even after the
passing of the decree, he does so as a wrongful occupant of
the accommodation. [629 A-D]
Damadilal and others v. Parashram and others [1976] Supp.
SCR 645, referred to.
(4) If a suit is filed on the ground of non-payment of rent
after termination of the contractual tenancy, the tenant
still continues to be tenant liable to pay rent not only for
the past period, but in future also. In absence of decree
of eviction the person in occupation of the accommodation
continues to be a tenant and is not liable to pay any
damages as his occupation is not unauthorised or wrongful
even after the termination of the contractual tenancy.
In the instant case (i) the defendants remained in
occupation of the. accommodation on and from 1-1-1973 as a
statutory tenant under the Act. Their occupation was not
unauthorised or wrongful until a decree for eviction was
passed by the first appellate court on 11-8-1975. Their
occupation became unauthorised or wrongful only from that
date. They are liable to pay damages or mesne profits at
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Rs. 125/- per mensem from 11-8-1975 only until the delivery
of the vacant possession of the accommodation. They are not
liable to pay any damages or mesne profits for the period
commending from 1-1-1973 and ending 10-8-1975. [629 E-G, 630
G-H, 631 A]
Kikabhai Abdul Hussain v. Kamlakar and Ors. [1974] M.P. Law
Journal 485, over-ruled.
Ganga Dutt Murarka v. Kartik Chandra Das & Ors. [1961] (3)
SCR 813, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 110 of 1976:
Appeal by Special Leave from the Judgment and Order dated
28-11-75 of the Madhya Pradesh High Court in Second Appeal
495 of 1975.
(Mrs) Leila Seth, A. T. Patra and Praveen Kumar for the
Appellants.
M. V. Goswami for Respondent No. 1.
G. S. Chatterjee for Respondent No. 2.
The Judgment of the Court was delivered by
UNTWALIA, J.---In this appeal by ’special leave the
appellants and respondent no. 2 were the defendants in a
suit filed by plaintiff-respondent no. 1 for eviction And
other reliefs in respect of the suit premises. The suit was
dismissed by the Trial Court but decreed by the
627
First Appellate Court. The second appeal filed by the
defendant in the High Court of Madhya Pradesh was dismissed.
The demised property is a shop situated at a place in the
District of Hoshangabad. It was let out by the father of
the plaintiff to the husband of defendant no. 1 and the
father of the other defendants in the year 1951 at a monthly
rent of Rs. 50/-. A Bhojnalaya was being run in the shop by
the tenant. The plaintiff’s father was running a sweetmeat
shop in a rented premise the rent of which was Rs. 225/per
month. The plaintiff’s father died in 1970. Sometime later
the original tenant, the predecessor-in-interest of the
defendants, also died. He’ had paid rent upto September,
1972. After the death of the original tenant, the
defendants became the tenants of the suit shop. The
plaintiff served a notice on the defendants terminating the
contractual tenancy w.e.f. 31-12-1972. The suit for
eviction was filed on 8-3-1973 claiming therein a decree for
eviction chiefly on the ground of bona-fide personal
necessity of the plaintiff, for arrears of rent amounting to
Rs. 150/- for October, November and December, 1972 and
damages for the months of January and February, 1973 @ Rs.
225/per month as also future damages till the delivery of
possession.
The Trial Court dismissed the suit holding that the
plaintiff did not require the suit shop bona-fide for his
personal necessity. On appeal by the plaintiff, the First
Appellate Court by its judgment dated 11-8-1975 took a
contrary view and held in favour of the plaintiff. It
decreed the suit for eviction, arrears of rent and also for
past and future damages @ Rs. 125/- per month damages to be
payable on and from 1-1-1973 until delivery of the vacant
possession to the plaintiff. The High Court has affirmed
this decree.
Mrs. Leila Seth, learned counsel for the appellants advanced
a very able and succinct argument and urged only the
following three points
(1) The business for which the accommodation
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was required by the plaintiff was not "his
business" within the meaning of clause (f) of
sub-section (1) of Section 12, of The Madhya
Pradesh Accommodation Control Act, 1961 here-
inafter referred to as the Act.
(2) That the rented shop in which the
business of sweetmeat and Namkin was carried
on should have been held to be an
accommodation "of his own in his occupation"
within the meaning of the second part of the
clause (f).
(3) That no decree for damages could be
awarded from the date of termination of. the
contractual tenancy. It could be awarded only
from the date when an eviction decree was
passed.
In our judgment the first two points of the appellants have
to be rejected but the third must succeed.
The plaintiff had clearly pleaded in paragraph 8 of his
plaint that the sweetmeat shop which he was running in the
rented premises was his business and he wanted to shift it
to the accommodation in question. The defendants did not
deny the statement made in paragraph 8 of
628
the plaint-rather in paragraph 6 of their written statement-
they admitted them to be correct. In such a situation it
was not open to them to take a stand at a very late stage of
the litigation that the sweetmeat shop was the business of
the joint family of the plaintiff-the karta of which was his
father and on his death it was the business not of the
plaintiff alone but of his- entire joint family. The High
Court has rightly rejected this point on this ground. In
Siddik Mahomed Shah v. Mt. Saran and others(1) it has been
pointed out that where a claim has never been made in the
defence presented no amount of evidence can be looked into
upon a plea which was never put forward. If it could be so
even at the trial stage, undoubtedly, such a new question of
fact could not be entertained at any appellate stage. This
decision has been followed by this Court in Bhagat Singh and
others v. Jaswant Singh(2). To the same effect is the view
expressed in another decision of this Court in Bachan Singh
v. Dhian Dass and others(3). Hegde, J pointed out in
paragraph 6 of the judgment that a contention involving
determination of questions of fact ought not have been
allowed to be raised for the first time in the second appeal
in the High Court. In this case we may add further that
neither any issue was struck nor was any evidence adduced by
the parties on this question. The case proceeded to trial
on the admitted footing that the business which the
plaintiff wanted to ’shift to the suit shop was his
business.
Apropos the second point it would be useful to point out
that the Act replaced an earlier Act of 1955 entitled as
The Madhya Pradesh Accommodation Control Act, 1955. In a
similar provision as contained in Section 4(h) of the 1955
Act, the expression used was that the landlord "is not in
occupation of any other accommodation in the city or town
for that purpose". There is a clear departure in the 1961
Act where the phraseology is that the landlord "has no other
reasonably suitable non-residential accommodation of his own
in his occupation in the cityor town concerned", in the
second part of clause (f) of Section 12(1)A tenanted shop
in mere occupation of the landlord filing a suit for
eviction against his tenant was ’sufficient to deny him a
decree on the ground of clause (h) of Section 4 of the 1955
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Act. But under the 1961 Act, mere occupation of another
premises is not sufficient. The premises must be his own,
meaning. thereby that they must be owned by or belong to the
landlord and he must be in occupation of the same. It is,
therefore, plain that the tenanted shop in occupation of the
plaintiff was not ’sufficient to deny him a decree for
eviction against his tenant under section 12(1) (f) of the
Act.
For appreciation of the third point urged for the appellant
it would be again useful to refer to a few corresponding
provisions of the two Acts. In the 1955 Act, tenant was
defined in clause (f) of Section 3 to mean "a person by whom
rent is payable or but for a contract express or implied
would be payable for any accommodation and includes any
person occupying the accommodation as a sub-tenant". In the
(1) [1930] Privy Council, 57 (1) (2) A.I.R. 1966 SC. 1861.
(3) A.I.R. 1974 S.C. 708.
629
1961 Act, however, the definition of tenant has been widened
and Section 2(i) reads thus :
"tenant" means a person by whom or on whose
account or behalf the rent of any
accommodation is, or, but, for a contract
express or implied, would be payable for any
accommodation and includes any person
occupying the accommodation as a sub-tenant
and also, any person continuing in possession
after the termination of his tenancy whether
before or after the commencement of this Act;
but shall not include any person against whom
any order or decree for eviction has been
made."
On a plain reading of the definition aforesaid it is clear
that a tenant even after the termination of his contractual
tenancy does not become an unauthorised occupant of the
accommodation but remains a tenant. It has been pointed out
by this Court in Damadilal and others v. Parashram and
others(1) that such a tenant is conveniently called a
statutory tenant. Whether the expression aforesaid borrowed
from the English Law is quite apposite or not, but, what is
certain is that a person continuing in possession of the
accommodation even after the termination of his contractual
tenancy is,, a tenant within the meaning of the Act and on
such termination his possession does not become wrongful,
until and unless a decree for eviction is made. If he con-
tinues to be in possession even after the passing of the
decree, he does so as a wrongful occupant of the
accommodation.
Mrs. Seth in support of her argument rightly pressed into
service a few other provisions of the Act. Section 13(1)
giving protection against eviction on the ground of default
in payment of rent provides therein that even after the
institution of the suit if he clears off the amount of rent
due within a period specified in the section and thereafter
"continue to deposit or pay, month by month, by the 15th of
each succeeding month a sum equivalent to the rent at that
rate" calculated at the rate of rent at which he was paying
earlier, no decree for eviction can be passed. The
conclusion is inevitable, therefore, that if a ’suit is
filed on the ground of non-payment of rent after termination
of the contractual tenancy, the tenant still continues to be
a tenant liable to pay rent not only for the past period but
in future also. In absence of a decree of eviction the
person in occupation of the accommodation continues to be a
tenant and is not liable to pay any damages as his
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occupation is not unauthorised or wrongful even after the
termination of the contractual tenancy. In Damadilal’s case
(supra). Gupta, J delivering the judgment of this Court has
said at page 653 with reference to the definition of tenant
in ’section 2(1) of the Act
"The definition makes a person continuing in
possession after the determination of his
tenancy a tenant unless a decree or order for
eviction has been made against him, thus
putting him on par with a person whose
contractual tenancy
(1)[1976] Suppl. S.C.R. 645.
630
stiff subsists. The incidents of such tenancy
and a contractual tenancy must therefore be
the same unless any provision of the Act
conveyed a contrary intention. That under
this Act such a tenant retains an interest in
the premises, and not merely a personal right
of occupation, will also appear from section
14 which contains provisions restricting the
tenant’s power of subletting."
In Kikabhai Abdul Hussain v. Kamlakar and others(1) a Bench
of the Madhya Pradesh High Court seems to have opined even
with reference to the 1961 Act that if a person continues
to be in occupation after the termination of the contractual
tenancy then on the passing of the decree for eviction he
becomes a wrongful occupant of the accommodation since the
date of termination. It seems a theory akin to the theory
of "relation back" has been applied in the sense that if no
decree for eviction is passed then the person is not in
unlawful occupation but on the passing of such a decree his
possession becomes unlawful not from the date of the decree
but such a decree makes his occupation unlawful from the
date of the termination of the contractual tenancy.
Whatever could be said with reference to the provisions of
1955 Act it is clear to us that the law so enunciated by the
High Court with reference to 1961 Act is not correct.
Mr. Goswami, appearing for the plaintiff respondent relied
upon the decision of this Court in Ganga Dutt Murarka v.
Kartik Chandra Das and others(2) In our opinion the said
decision is of no help to the respondent. The question for
determination there was a different one. With reference to
the provisions of, the West Bengal Premises Rent Control Act
the argument advanced before this Court was that if after
the determination of the tenancy by , efflux of time or by a
notice to quit the tenant continued in possession of the
premises and the landlord accepted rent from him because no
decree for eviction could be made in view of the subsequent
Control Acts it was tantamount to holding over within the
meaning of Section 116 of the Transfer of Property Act.
This argument was repelled. Whether a new contractual
tenancy would come into existence by acceptance of rent by
the landlord in such a situation is a different matter. But
this case does not lay down that the occupation of the
premises by the tenant whose tenancy has been terminated by
efflux of- time or by notice to quit becomes unauthorised or
wrongful.
For the reason stated above it is manifest that the
defendants remained in occupation ’of the accommodation on
and from 1-1-1973 as a tenant, conveniently to be called
statutory tenant, under the Act. Their occupation was not
unauthorised or wrongful until a decree for eviction was
passed by the First Appellate Court on 11-8-75. Their
occupation became unauthorised or wrongful only from that
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date. They are not therefore, liable to pay any damages or
mesne profits for
(1) [1974] Madhya Pradesh Law Journal, 485. (2) [1961]
3 S.C.R. 814.
631
the period commencing from 1-1-1973 and ending on 10-8-1975.
Decree for damages either in respect of the two months prior
to the institution of the suit or for the subsequent period
must therefore be set aside. The defendant-appellants will
be liable to pay damages or mesne profits @ Rs. 125/ per
month (the rate of damages could not be and was not
challenged before us) from 11-8-1975 only, until the
delivery of the vacant possession of the accommodation,
In the result the appeal is allowed in part only to the
extent stated above. In the circumstances, we shall make no
order as to costs in this Court.
S.R. Appeal allowed in part.
632