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Wednesday, January 8, 2014

Alternative pleas/contradictory pleas holds no significance when suit was decreed on main relief - suit filed for recovery of possession from the Licensees as they acted against the interest of owner after terminating the License - the defendants claimed as tenants - Suit filed with alternative relief under Bombay Rent Act as the defendants claimed as tenants - Lower court dismissed the suit as the defendants are tenants - Appeal allowed as the defendants are Licensees not tenant and High court set aside the Appeal decree and restored the dismissal order of Lower court on the ground that the plaintiff has taken alternative/ contradictory pleas - Apex court set aside the order of High court and held that the appellate Court had granted relief to the appellant not in relation to the alternative plea raised by him but on the principal case set up by the plaintiff. If the plaintiff succeeded on the principal case set up by him whether or not the alternative plea was contradictory or inconsistent or even destructive of the original plea paled into insignificance. = Praful Manohar Rele …Appellant Versus Smt. Krishnabai Narayan Ghosalkar & Ors. …Respondents = Published in judis.nic.in/supremecourt/filename=41124

Alternative pleas/contradictory pleas holds no significance when suit was decreed on main relief - suit filed for recovery of possession from the Licensees as they acted against the interest of owner after terminating the License - the defendants claimed as tenants - Suit filed with alternative relief under Bombay Rent Act as the defendants claimed as tenants - Lower court dismissed the suit as the defendants are tenants - Appeal allowed as the defendants are Licensees not tenant and High court set aside the Appeal decree and restored the dismissal order of Lower court on the ground that the plaintiff has taken alternative/ contradictory pleas -  Apex court set aside the order of High court and held that  the appellate Court had granted  relief  to  the  appellant not in relation to the alternative plea raised by him but on  the  principal case set up by the plaintiff.  If the plaintiff succeeded on  the  principal case set up by him whether or not the alternative plea was contradictory  or inconsistent  or  even  destructive  of  the  original   plea   paled   into insignificance. =

 “Whether the plaintiff could raise two  contradictory  pleas  in
 the plaint, namely, that 
(i) the defendants  were  permitted  to  occupy the suit premises gratis; and 
(ii)  that  the  defendants should be evicted from the suit premises under the provisions of the Bombay Rent Act?” 
 The High Court has taken  the  view
that while the plaintiff could indeed seek relief in  the  alternative,  the
contentions raised by him were not in  the  alternative  but  contradictory,
hence, could not be allowed to be urged.  The  High  Court  found  that  the
plaintiff’s  case  that  the  defendant  was  a  gratuitous   licensee   was
incompatible with the plea that he was a tenant  and,  therefore,  could  be
evicted under the Rent Act. =

 In G. Nagamma and Anr. v. Siromenamma and Anr. (1996) 2 SCC  25,  this
Court held that the plaintiff was entitled to plead even inconsistent  pleas
especially when, they are seeking alternative reliefs.
16.   To the same effect is the decision of  this  Court  in
 B.K.  Narayana Pillai v. Parameswaran Pillai 2000(1) SCC 712.
In that case  the  appellant-
defendant wanted to amend the written statement by taking  a  plea  that  in
case he is not held to be a lessee,  he  was  entitled  to  the  benefit  of
Section 60(b) of the Indian Easements  Act,  1882.
Allowing  the  amendment
this Court held that the plea sought to be raised was  neither  inconsistent
nor repugnant to the pleas raised in defence.  
The  Court  further  declared
that there was no absolute bar against taking of  inconsistent  pleas  by  a
party.  
What is impermissible is taking of an inconsistent plea  by  way  of
an amendment thereby denying the other side  the  benefit  of  an  admission
contained  in  the  earlier  pleadings.   In  cases  where  there   was   no
inconsistency in the facts alleged a party is  not  prohibited  from  taking
alternative pleas available in law.
17.   Reference may also be made to the decision of this Court in

J.J.  Lal Pvt. Ltd. and Ors. v. M.R. Murali and Anr. (2002) 3 SCC 98
where this  Court
formulated the following tests for determining whether the alternative  plea
raised by the plaintiff was permissible:


           “To sum up the gist of holding  in  Firm  Sriniwas  Ram  Kumar's
           case: 
If the facts stated and pleading  raised  in  the  written
           statement,  though  by  way  of  defence  to  the  case  of  the
           plaintiff, are such which could have entitled the plaintiff to a
           relief in the  alternative,  the  plaintiff  may  rely  on  such
           pleading of the defendant and claim an  alternate  decree  based
           thereon subject to four conditions being  satisfied,  viz., 
 (i) the statement of case by  defendant  in  his  written  statement
           amounts to an express  admission  of  the  facts  entitling  the
           plaintiff to an alternative relief, 
(ii) in granting such relief
           the defendant is not taken by surprise, 
(iii) no  injustice  can
           possibly result to the defendant, and 
(iv) though the  plaintiff
           would have been entitled to the same relief in a  separate  suit
           the interest of justice demand the plaintiff not being driven to
           the need of filing another suit.”



18.   The plaintiff-appellant in the case at hand  had  set  up  a  specific
case that the defendant as also his legal representative  after  his  demise
were occupying the  suit  premises  as  licensees  which  licence  had  been
validly terminated. 
In the reply to the notice the case  of  the  defendants
was that were in occupation of the suit premises not  as  licensees  but  as
tenants.  
The plaintiff was, therefore, entitled on that basis alone to  ask
for  an  alternative  relief  of  a  decree  for  eviction  on  the  grounds
permissible under the Rent Control Act.  
Such an alternative  plea  did  not
fall foul if any of the requirements/tests set out in the decision  of  this
Court in J.J. Lal’s case (supra).  
We say so because the  written  statement
filed by the defendant contained an express admission of the fact  that  the
property  belonged  to  the  plaintiff  and  that  the  defendants  were  in
occupation thereof as  tenants.   At  the  trial  Court  also  the  question
whether the defendants were in occupation as  licencee  or  as  tenants  had
been specifically put in issue thereby giving  the  fullest  opportunity  to
the parties to prove their respective cases.  
There was no question  of  the
defendants being taken by surprise by the alternative case  pleaded  by  the
plaintiff nor could any injustice result from  the  alternative  plea  being
allowed and tried by the Court.  
As a matter of fact  the  trial  Court  had
without any demurrer gone into  the  merits  of  the  alternative  plea  and
dismissed the suit on the ground that the plaintiff had  not  been  able  to
prove a case for eviction of the defendants.  
There  was  thus  not  only  a
proper trial on all  those  grounds  urged  by  the  plaintiff  but  also  a
judgment in favour of the defendant respondents.  
Last  but  not  the  least
even if the alternative plea had not been allowed to be raised in  the  suit
filed by the appellant he would have been certainly entitled to  raise  that
plea and seek eviction in a separate suit filed on the  very  same  grounds.
The only difference may have been that the suit may  have  then  been  filed
before the Court of Small Causes but no error of jurisdiction was  committed
in the instant case as the finding recorded by the Civil Court was that  the
defendants were licensees and not tenants.  
Superadded to all these  factors
is the fact that the appellate Court had granted  relief  to  the  appellant
not in relation to the alternative plea raised by him but on  the  principal
case set up by the plaintiff.  If the plaintiff succeeded on  the  principal
case set up by him whether or not the alternative plea was contradictory  or
inconsistent  or  even  destructive  of  the  original   plea   paled   into
insignificance.

 In the result, this  appeal  succeeds  and  is,  hereby  allowed,  the
impugned judgment passed by the High Court is set aside and that  passed  by
the first appellate Court is restored.  The  respondents  are  granted  time
till 30th April  2014  to  vacate  the  premises  subject  to  their  filing
undertakings on usual terms before this Court within six weeks  from  today.
In case the undertakings are not filed, as directed, the  decree  passed  in
favour of the appellant shall become executable forthwith.  No costs.
                                                

  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.  50 OF 2014
                 (Arising out of S.L.P. (C) No.4719 of 2010)


Praful Manohar Rele                                …Appellant

      Versus

Smt. Krishnabai Narayan
Ghosalkar & Ors.                             …Respondents


                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.




2.    This appeal arises out of a judgment and  order  dated  16th  October,
2009 passed by the High Court of  Judicature  at  Bombay  whereby  the  High
Court has allowed Civil Second Appeal No.90 of 1992 set aside  the  judgment
and decree passed by the Additional District Judge in Civil Appeal No.33  of
1987 and restored that passed by the Trial Court  dismissing  Regular  Civil
Suit No.87 of 1984.  The factual backdrop in which the dispute arose may  be
summarized as under:

3.    Manohar Narayan Rele owned a house bearing  Panchayat  No.105  situate
in village Ravdanda,  Taluka  Alibag,  District  Raigad,  in  the  State  of
Maharashtra.  
In RCS No.87 of 1984 filed by the said Shri  Rele  before  the
Civil Judge (Junior Division), Alibag, the plaintiff  prayed  for  a  decree
for possession  of  the  suit  premises  comprising  a  part  of  the  house
mentioned above on the ground that the defendants who  happened  to  be  the
legal  heirs  of  one  Shri  Narayan  Keshav  Ghosalkar,  a   Goldsmith   by
profession, residing in Bombay was allowed to occupy the suit premises as  a
gratuitous licensee  on  humanitarian  considerations  without  any  return,
compensation, fee or charges for such occupation.
Upon the  demise  of  Shri
Narayan Keshav Ghosalkar in February 1978, the defendants who  stepped  into
his shoes as legal heirs started  abusing  the  confidence  reposed  by  the
plaintiff in the said Ghosalkar and creating nuisance and annoyance  to  the
plaintiff with the result that the plaintiff was  forced  to  terminate  the
licence granted by him in terms of a notice assuring for delivery of  vacant
possession of the premises w.e.f. 1st February, 1984.
Upon  receipt  of  the
notice, the defendants instead of complying  with  the  same  sent  a  reply
refusing to vacate the premises on the false plea that they  were  occupying
the same as tenants since the time of  Shri  Narayan  Keshav  Ghosalkar  and
were paying rent  although  the  plaintiff  had  never  issued  any  receipt
acknowledging such payment. 
 In a rejoinder  sent  to  the  defendants,  the
plaintiff denied the allegations made  by  the  defendants  and  by  way  of
abundant caution claimed  possession  of  the  suit  premises  even  on  the
grounds permitted under the Rent Control Act of course without prejudice  to
his contention that the defendants could not seek protection under the  Rent
Act.  Time for vacation of the  premises  was  also  extended  by  the  said
rejoinder upto the end of April, 1984.

4.    The defendants  did  not  vacate  the  premises  thereby  forcing  the
plaintiff to file a suit for possession against  them  on  the  ground  that
they  were  licensees  occupying  the  premises  gratuitously  and  out   of
humanitarian considerations. 
 It was alternatively urged that the  plaintiff
was entitled to vacation  of  the  premises  on  the  ground  of  bona  fide
personal need, nuisance,  annoyance  and  damage  allegedly  caused  to  the
premise and to the adjoining garden land belonging to him.

5.    In the written statement filed by the defendants they stuck  to  their
version  that  the  suit  property  was  occupied  by  Shri  Narayan  Keshav
Ghosalkar as a tenant and  upon  his  demise  the  defendants  too  were  in
occupation of the same as tenants.

6.    On the pleadings of the parties the Trial  Court  framed  as  many  as
eight issues and eventually dismissed the suit holding  that  the  plaintiff
had failed to prove that  the  defendants  were  gratuitous  licensees.
The Trial Court also  held  that  the  defendants  had  proved  that  they  were
occupying the premises as tenants on a monthly rent of Rs.13/- and that  the
plaintiff had failed to prove that he required the  premises  for  his  bona
fide personal use and occupation. Issues regarding  the  defendants  causing
nuisance and annoyance to the plaintiff and  damage  to  the  property  were
also held against the plaintiff by the Trial Court  while  declining  relief
to the plaintiff.

7.    Aggrieved by the judgment and decree passed by the  Trial  Court,  the
plaintiff preferred  Civil  Appeal  No.33  of  1987  before  the  Additional
District Judge, Alibag who formulated  six  points  for  determination   and
while allowing the appeal filed by the plaintiff decreed the suit in  favour
of his legal representatives as the original plaintiff had  passed  away  in
the meantime.
The  First  Appellate  Court  held  that  the  plaintiff  had
successfully established  that  the  suit  premises  was  occupied  by  Shri
Narayan Keshav Ghosalkar on gratuitous and  humanitarian  grounds.  
It  also
held that the defendants-respondents had failed to prove  the  existence  of
any tenancy in their favour and  that  since  the  license  granted  to  the
defendants had been validly  terminated,  the  legal  heirs  substituted  in
place of the original plaintiff were entitled to a decree.

8.    Second appeal No.90 of 1992 was then filed by the  respondent  against
the judgment  of  the  First  Appellate  Court  before  the  High  Court  of
Judicature at Bombay which was allowed by a Single Judge of  that  Court  in
terms of its judgment impugned in  the  present  appeal.  Apart  from  three
substantial questions of  law  which  the  High  Court  had  formulated  for
consideration, it framed a fourth question for consideration  which  was  to
the following effect:

           “Whether the plaintiff could raise two  contradictory  pleas  in
           the plaint, namely, that 
(i) the defendants  were  permitted  to
           occupy the suit premises gratis; and 
(ii)  that  the  defendants
           should be evicted from the suit premises under the provisions of
           the Bombay Rent Act?”




9.    Significantly, the decision rendered by the High Court rests  entirely
on the fourth question extracted above.  The High Court has taken  the  view
that while the plaintiff could indeed seek relief in  the  alternative,  the
contentions raised by him were not in  the  alternative  but  contradictory,
hence, could not be allowed to be urged.  The  High  Court  found  that  the
plaintiff’s  case  that  the  defendant  was  a  gratuitous   licensee   was
incompatible with the plea that he was a tenant  and,  therefore,  could  be
evicted under the Rent Act.
The High Court observed:

                 “It is now well settled that a plaintiff may  seek  reliefs
           in the alternative  but  in  fact  the  pleadings  are  mutually
           opposite, such pleas cannot be raised by the plaintiff. 
There is
           an  essential  difference  between   contradictory   pleas   and
           alternative pleas.  
When the  plaintiff  claims  relief  in  the
           alternative, the cause of action for the reliefs claimed is  the
           same.  
However, when contradictory pleas are raised, such as  in
           the present case, the foundation for these  contradictory  pleas
           is not the same.  
When the plaintiff  proceeds  on  the  footing
           that the defendant is a gratuitous licensee, he  would  have  to
           establish that  no  rent  or  consideration  was  paid  for  the
           premises. 
Whereas, if he seeks to evict the defendant under  the
           Rent Act,  the  plaintiff  accepts  that  the  defendant  is  in
           possession of the premises as a tenant and liable to  pay  rent.
           Thus, the issue whether rent is being paid  becomes  fundamental
           to the decision.  
Therefore, in my opinion, the pleas  that  the
           defendant is occupying the suit  premises  gratuitously  is  not
           compatible with the plea that the  defendant  is  a  tenant  and
           therefore can be evicted under the Rent Act.”




10.   We have heard learned counsel for the parties at length. The  case  of
the plaintiff appellant herein primarily was  that  the  original  defendant
and even his legal representatives  were  occupying  the  suit  premises  as
gratuitous licensees upon termination whereof the plaintiff was entitled  to
a decree for possession. While the Trial Court  found  that  the  defendants
were tenants and not  licensees  as  alleged  by  the  plaintiff  the  First
Appellate Court had recorded a clear finding to the  contrary  holding  that
the defendants  were  indeed  occupying  the  premises  as  licensees  whose
license was  validly  terminated  by  the  plaintiff.  
Whether  or  not  the
defendants were licensees as alleged by  the  plaintiff  was  essentially  a
question of fact and had to be answered on the  basis  of  the  evidence  on
record which the First Appellate Court had  reappraised  to  hold  that  the
defendants were let into the suit property by the plaintiff on  humanitarian
grounds and as gratuitous licensees.  Absence of any  rent  note  evidencing
payment of rent or any other material or circumstance to  suggest  that  the
relationship  between  the  parties  was  that  of  landlord   and   tenant,
abundantly supported the conclusion  of  the  First  Appellate  Court.  That
finding also negatived the defence of the defendants-respondents  that  they
were occupying the premises as tenants which  assertion  of  the  defendant-
respondent was held not proved by the First Appellate Court.   
There  is  no
gainsaid that  while  considering  the  question  whether  the  relationship
between the parties was that of licensor and  licensee  as  alleged  by  the
plaintiff or landlord and tenant as asserted by the  defendants,  the  First
Appellate Court took into consideration the  totality  of  the  evidence  on
record with a view to finding out as  to  which  of  the  two  versions  was
factually correct. That doubtless was the correct approach  to  adopt  in  a
suit based on an alleged license where the defendant’s logical  defence  was
bound to be that he is in occupation not as a  licensee  but  as  a  tenant.
There was, in that view, nothing special or novel about the plea  raised  in
defence by the defendants-respondents. What is important is that  the  First
Appellate  Court  on  facts  found  that  the  defendants  and  even   their
predecessor were licensees in the premises which stood  validly  terminated.
The High Court could not have interfered with that  finding  of  fact  leave
alone on the ground that since the alternative case set up by the  plaintiff
in the plaint was contradictory to the primary case pleaded by him,  he  was
entitled to relief even on proof of the primary case.

11.   That apart the alternative plea of the plaintiff and the  defence  set
up by the defendants was no different from each other.   The  only  question
that    would  fall  for  determination  based  on    such  a    plea    was
whether   the plaintiff had made out  a  case  on  the  grounds  permissible
under the Rent Control Act. An adjudication  on  that  aspect  would  become
necessary only if the plaintiff did not succeed on the primary case  set  up
by him. The alternative plea would be redundant if the plaintiff’s  case  of
the defendants being gratuitous licenses was accepted by  the  Court.   That
is precisely what had happened in the instant  case.   The  First  Appellate
Court accepted the plaintiff’s case that defendants were  in  occupation  as
licensees and not as tenants.   The  High  Court  has  not  set  aside  that
finding of fact on its merits.  It may have been a different matter  if  the
High Court had done so for valid reasons and then declined to entertain  the
alternative case set up by the plaintiff based  on  tenancy.  One  could  in
that case perhaps argue that  the  Court  had  declined  to  go  beyond  the
principal  contention  to   examine   the   alternative   plea   which   was
contradictory to the principal plea.  That, however, is not  what  the  High
Court has done. Without finding fault with  the  findings  recorded  by  the
First Appellate Court on the question of a license and its  termination  the
High Court has dismissed the suit simply because the plea  of  tenancy  was,
in its opinion, contradictory to the plea of license set up in  the  earlier
part of the plaint.  That was not, in our  opinion,  a  proper  approach  or
course to follow.

12.   The upshot of the above discussion is that the  order  passed  by  the
High Court cannot be sustained.  Having said  that  we  may  deal  with  the
question whether the plea of license and tenancy could be together urged  by
the plaintiff for grant of relief in a suit for possession.

13.    The  general  rule  regarding  inconsistent  pleas  raised   in   the
alternative is settled by a long line of decisions rendered by  this  Court.
One of the earliest decisions on the subject was rendered by this  Court  in
Srinivas Ram Kumar v. Mahabir Prasad and Ors. AIR 1951 SC  177,
where  this
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 defendant second party. But it was certainly open to
           the plaintiff to make an 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…An  Appellant  may  rely  upon
           different rights 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.”
14.   In Bhagwati Prasad v. Chandramaul AIR 1966 SC 735 
the plea of  licence
was accepted against the plea of tenancy although   the plea of licence  was
not set up by the appellant. The appellant in that case contended  that  the
land and the construction over the land belonged to him and that he had  let
the constructed portion to the respondent on a monthly  rental  basis.   The
respondent,  however,  alleged  that  although  the  land  belonged  to  the
appellant the building  standing  over  the  same  was  constructed  by  the
respondent out of his own money and, therefore, he was  entitled  to  occupy
the same till his money was recovered from the appellant.   Since  the  plea
of tenancy set up by the appellant could not be proved, the Court held  that
the respondent was staying in the house with the leave and  licence  of  the
appellant. What is important  is  that  the  Court  clearly  recognised  the
principle that if the plea raised by the tenant  in  his  written  statement
was  clear  and  unambiguous  in  a  suit  where  one  party   alleged   the
relationship between the two to be that of licensor and licensee, while  the
other alleged the  existence  of  a  tenancy,  only  two  issues  arose  for
determination, namely, whether the defendant is tenant of the  plaintiff  or
is holding  the  property  as  a  licensee.   If  the  Court  comes  to  the
conclusion after the parties lead their evidence that the  tenancy  had  not
been proved then the only logical inference was that the  defendant  was  in
possession of the property as a licensee.
This Court said:
          “In such a case the relationship  between  the  parties  would  be
          either that of a landlord and tenant,  or  that  of  an  owner  of
          property and a person put into possession if  it  by  the  owner's
          license.  No  other  alternative  is  logically  or   legitimately
          possible. When parties led evidence in  this  case,  clearly  they
          were conscious of this position, and so, when the High Court  came
          to the conclusion that the tenancy had not been  proved,  but  the
          defendant's argument also had not  been  established,  it  clearly
          followed that the defendant was in possession of the suit premises
          by the leave and license of the plaintiff…………………………………..
          In our opinion, having regard to the pleas taken by the  defendant
          in his written statement in clear and unambiguous  language,  only
          two issues could arise between the parties: is the  defendant  the
          tenant of the plaintiff, or is he  holding  the  property  as  the
          license  ,subject  to  the  terms   specified   by   the   written
          statement?.... we are unable to  see  any  error  of  law  in  the
          approach by the High Court in dealing with it.”
                                                         (emphasis supplied)


15.   In G. Nagamma and Anr. v. Siromenamma and Anr. (1996) 2 SCC  25,  this
Court held that the plaintiff was entitled to plead even inconsistent  pleas
especially when, they are seeking alternative reliefs.
16.   To the same effect is the decision of  this  Court  in
 B.K.  Narayana Pillai v. Parameswaran Pillai 2000(1) SCC 712.
In that case  the  appellant-
defendant wanted to amend the written statement by taking  a  plea  that  in
case he is not held to be a lessee,  he  was  entitled  to  the  benefit  of
Section 60(b) of the Indian Easements  Act,  1882.
Allowing  the  amendment
this Court held that the plea sought to be raised was  neither  inconsistent
nor repugnant to the pleas raised in defence.  
The  Court  further  declared
that there was no absolute bar against taking of  inconsistent  pleas  by  a
party.  
What is impermissible is taking of an inconsistent plea  by  way  of
an amendment thereby denying the other side  the  benefit  of  an  admission
contained  in  the  earlier  pleadings.   In  cases  where  there   was   no
inconsistency in the facts alleged a party is  not  prohibited  from  taking
alternative pleas available in law.
17.   Reference may also be made to the decision of this Court in
J.J.  Lal
Pvt. Ltd. and Ors. v. M.R. Murali and Anr. (2002) 3 SCC 98
where this  Court
formulated the following tests for determining whether the alternative  plea
raised by the plaintiff was permissible:


           “To sum up the gist of holding  in  Firm  Sriniwas  Ram  Kumar's
           case: 
If the facts stated and pleading  raised  in  the  written
           statement,  though  by  way  of  defence  to  the  case  of  the
           plaintiff, are such which could have entitled the plaintiff to a
           relief in the  alternative,  the  plaintiff  may  rely  on  such
           pleading of the defendant and claim an  alternate  decree  based
           thereon subject to four conditions being  satisfied,  viz., 
 (i) the statement of case by  defendant  in  his  written  statement
           amounts to an express  admission  of  the  facts  entitling  the
           plaintiff to an alternative relief, 
(ii) in granting such relief
           the defendant is not taken by surprise, 
(iii) no  injustice  can
           possibly result to the defendant, and 
(iv) though the  plaintiff
           would have been entitled to the same relief in a  separate  suit
           the interest of justice demand the plaintiff not being driven to
           the need of filing another suit.”



18.   The plaintiff-appellant in the case at hand  had  set  up  a  specific
case that the defendant as also his legal representative  after  his  demise
were occupying the  suit  premises  as  licensees  which  licence  had  been
validly terminated.
In the reply to the notice the case  of  the  defendants
was that were in occupation of the suit premises not  as  licensees  but  as
tenants.  
The plaintiff was, therefore, entitled on that basis alone to  ask
for  an  alternative  relief  of  a  decree  for  eviction  on  the  grounds
permissible under the Rent Control Act.  
Such an alternative  plea  did  not
fall foul if any of the requirements/tests set out in the decision  of  this
Court in J.J. Lal’s case (supra).  
We say so because the  written  statement
filed by the defendant contained an express admission of the fact  that  the
property  belonged  to  the  plaintiff  and  that  the  defendants  were  in
occupation thereof as  tenants.   At  the  trial  Court  also  the  question
whether the defendants were in occupation as  licencee  or  as  tenants  had
been specifically put in issue thereby giving  the  fullest  opportunity  to
the parties to prove their respective cases.
There was no question  of  the
defendants being taken by surprise by the alternative case  pleaded  by  the
plaintiff nor could any injustice result from  the  alternative  plea  being
allowed and tried by the Court.  
As a matter of fact  the  trial  Court  had
without any demurrer gone into  the  merits  of  the  alternative  plea  and
dismissed the suit on the ground that the plaintiff had  not  been  able  to
prove a case for eviction of the defendants.  
There  was  thus  not  only  a
proper trial on all  those  grounds  urged  by  the  plaintiff  but  also  a
judgment in favour of the defendant respondents.  
Last  but  not  the  least
even if the alternative plea had not been allowed to be raised in  the  suit
filed by the appellant he would have been certainly entitled to  raise  that
plea and seek eviction in a separate suit filed on the  very  same  grounds.
The only difference may have been that the suit may  have  then  been  filed
before the Court of Small Causes but no error of jurisdiction was  committed
in the instant case as the finding recorded by the Civil Court was that  the
defendants were licensees and not tenants.
Superadded to all these  factors
is the fact that the appellate Court had granted  relief  to  the  appellant
not in relation to the alternative plea raised by him but on  the  principal
case set up by the plaintiff.  If the plaintiff succeeded on  the  principal
case set up by him whether or not the alternative plea was contradictory  or
inconsistent  or  even  destructive  of  the  original   plea   paled   into
insignificance.
19.   In the result, this  appeal  succeeds  and  is,  hereby  allowed,  the
impugned judgment passed by the High Court is set aside and that  passed  by
the first appellate Court is restored.  The  respondents  are  granted  time
till 30th April  2014  to  vacate  the  premises  subject  to  their  filing
undertakings on usual terms before this Court within six weeks  from  today.
In case the undertakings are not filed, as directed, the  decree  passed  in
favour of the appellant shall become executable forthwith.  No costs.






                                                          .……………….……….…..…J.
                                                               (T.S. THAKUR)





                                                         ……..…………………..…..…J.
                                                            (VIKRAMAJIT SEN)

New Delhi
January 3, 2014

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