PETITIONER:
BHAGWATI PRASAD
Vs.
RESPONDENT:
SHRICHANDRAMAUL
DATE OF JUDGMENT:
19/10/1965
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
RAMASWAMI, V.
CITATION:
1966 AIR 735 1966 SCR (2) 286
CITATOR INFO :
R 1980 SC 727 (10)
RF 1987 SC1242 (6)
ACT:
Practice & Procedure-Details in pleadings-When deemed
sufficient.
Licensee Ejected, if liable to pay mesne profits.
HEADNOTE:
The respondent filed a suit alleging that he was the owner
of a house let out to the appellant as a tenant and claimed
a decree for the appellant's ejectment, arrears of rent and
future mesne profits. The appellant admitted that the land
over which the house had been constructed belonged to the
respondent but pleaded that the house had been constructed
by the appellant at his own cost on the condition that he
would continue to occupy it until the amount spent by him on
the construction was. repaid to him by the respondent. The
trial court disbelieved the appellant's version and also
disbelieved the agreement as to the rent on which the
respondent relied and held that the relationship of landlord
and tenant had been proved and that the respondent was
entitled to a decree for ejectment as well as to a reduced
-amount by way of rent and directed the appellant to pay
damages by way of use and occupation till the date of
ejectment. On appeal the High Court held that the appellant
must be deemed to have been in possession of the house as a
licensee and treating the respondent's claim for ejectment
on the basis that the appellant was proved to be a licensee
of the premises, the High Court confirmed the decree for
ejectment; but it set aside the decree to pay past rent and
mesne profits being of the view that even if the res-
pondent's case about the tenancy had been proved, such a
tenancy would have been invalid because of the relevant
statutory provisions then prevailing in the area. Both the
appellant and respondent appealed to this Court :
HELD : If a party asked for a relief on a clear and specific
ground, and in the issues or at the trial, no other ground
was covered either directly or by necessary implication, it
would not be open to the said party to attempt to sustain
the same claim on a ground which is entirely new. But where
the substantial matters relating to the title of both the
parties to the suit are touched, though indirectly, in the
issues, and evidence has been led about them, then the
argument that a particular matter was not expressly taken in
the pleadings would be purely fornication and technical and
cannot succeed in every case. What the court has to
consider in dealing with such an objection is : did the
parties know that the matter in question was involved in the
trial, and did they lead evidence about it ? If it appears
that the parties did not know that the matter was in issueat
the trial and one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly would be a
different matter [290 F; 291 D-F]
In the present case, having regard to all the facts, the
High Court did not err in confirming the decree for
ejectment on the ground that the appellant was in possession
of the suit premises as a licensee. On the pleas taken by
the appellant in his written statement in clear and unambi-
guous language, only two issues could arise between the
parties : is the
287
appellant the tenant of the respondent or is he holding the
property as the licensee subject to the terms specified in
the written statement? In effect, the written statement
pleaded licence, subject to the condition that the licensee
was to remain in possession until the amount spent by him
was returned by the respondent. [292 G-H]
Trojan & Co. Ltd. v. Rm. N. N. Nagappa Chettiar, [1953]
S.C.R. 789 and Sheodhar Rai & Ors. v. Suraj Prasad Singh &
Ors., A.I.R. 1954 S.C. 758, referred to.
In regard to the respondent's claim for past 'rent, no
interference was called for with the decree passed by the
High Court, but its decree in relation to future mesne
profits could not be sustained. Once it was held that the
respondent was entitled to eject the appellant it followed
that from the date of the decree granting the relief
ejectment to the respondent the appellant who remained in
possession of the property despite the decree, must pay
mesne profits or damages for use and occupation of the said
property until it was delivered to the respondent. A decree
for ejectment in such a case must be accompanied by a
direction for payment of the future mesne profits or
damages. [294F-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 964 and
965 of 1964.
Appeals from the judgments and decree dated December 14,
1962 of the Allahabad High Court in First Appeal No. 564 of
1958.
M. C. Setalvad, J. P. Goyal, for appellant (In C. A. No.
964of 1964) and respondent (In C.A. No. 965 of 1964).
A. Ranganadham Chetty, E. C. Agarwala and P. C. Agarwala,
for respondent (In C.A. No. 964 of 1964) and appellant (In
C.A. No. 965 of 1964).
The Judgment of the Court was delivered by
Gajendragadkar, C.J. These two cross appeals arise from a
suit filed by Chandramaul (hereinafter called the plaintiff)
against Bhagwati Prasad (hereinafter called the defendant)
in the Court of the Second Civil Judge, Kanpur. The,
plaintiff' alleged that he was the owner of house No. 59/8,
Nachghar, Birhana Road, Kanpur and that he had let out the
said house. to the defendant as his tenant. According to
the plaint, the plaintiff and the defendant were friends and
enjoyed mutual confidence. As the house was being
constructed, the defendant wanted some premises for
residence, and so, when the ground floor was constructed he
was let in as a tenant by the plaintiff on a monthly rent of
Rs. 150 in 1947. In 1948, the first floor was completed and
the defendant took that portion as well as a tenant on an
additional rent of Rs. 150 p.m. By 1950, another floor had
been added and the defendant was given the said floor as
Sup.C.I./66- 5
288
well on a further additional rent of Rs. 150 p.m. Thus, the
defendant was in possession of the house as a tenant of the
plaintiff on the condition that he was to pay Rs. 450 p.m.
as rent. The defendant continued to pay this rent and was
not in arrears in that behalf as on the 31st March, 1954.
Thereafter, he failed to pay the rent, and so, the plaintiff
terminated his tenancy and brought the present suit on the
30th November, 1955 claiming ejectment against the defendant
and a decree for Rs. 8,550 as arrears of rent from the 1st
April, 1954 to the end of October, 1955. Future mesne
profits were also claimed.
The defendant admitted that the land over which the house
stood belonged to the plaintiff. He, however, pleaded that
the house had been constructed by the defendant at his own
cost and that too at the request of the plaintiff, because
the plaintiff had no funds to construct the building on his
own. Having constructed the house at his own cost, the
defendant went into possession of the house on condition
that the defendant would continue to occupy the house until
the amount spent by him on the construction was repaid to
him by the plaintiff. According to the defendant, he had
spent Rs. 32,704-1-0 on the construction of the house.
Basing himself on this agreement, the defendant resisted the
claim made by the plaintiff for ejectment as well as for
rent.
On these pleadings, the learned trial Judge framed seven
issues. He disbelieved the defendant's version in regard to
the construction of the house and found that the agreement
set up by him in that behalf on the basis that he spent the
money on the construction of the house himself, had not been
established. He also disbelieved the plaintiffs case about
the agreement as to rent ,on which the plaintiff relied.
According to the trial Judge, the defendant had admitted the
ownership of the plaintiff, and having regard to the
pleadings and the evidence adduced by the parties, he came
to the conclusion that the relationship of landlord and
tenant had been proved. Having made this specific basic
finding, the learned trial Judge held that the suit was
competent and came to the conclusion that the plaintiff was
entitled to a decree for ejectment as well as for rent.
In regard to the amount of rent, however, the learned trial
Judge did not accept the plaintiff's version and considered
the question on the merits. He held that Rs. 300 p.m. would
be a reasonable rent for the premises in question. That is
how he passed a decree for Rs. 5,700 in favour of the
plaintiff as arrears of rent from 1st April, 1954 up to the
31st October, 1955. The
289
decree further directed the defendant to pay damages by way
of use and occupation at the rate of Rs. 300 p.m. till the
date of ejectment.
Against this decree the defendant preferred an appeal before
the Allahabad High Court. The High Court has agreed with
the trial Court in disbelieving the defendant's version
about the construction of the house and about the terms and
conditions on which he had been let into possession. The
High Court was also not satisfied with the plaintiff's
version about the tenancy between him and the defendant.
Having regard to the fact that the defendant had virtually
admitted the title of the plaintiff, the High Court held
that the defendant must be deemed to have been in possession
of the house as a licensee; and treating the plaintiff's
claim for ejectment on the basis that the defendant was
proved to be a licensee of the premises, the High Court has
confirmed the decree for ejectment passed by the trial
Court.
It has, however set aside the said decree insofar as it
directed the defendant to pay past rent at the rate of Rs.
300 p.m. This decision was the result of the fact that the
High Court was not satisfied that the plaintiff had
established any of the terms of the tenancy. In that
connection, the High Court has referred to the fact that
even if the plaintiffs case about the tenancy had been
proved, such a tenancy would have been invalid because of
the relevant statutory provisions then prevailing in the
area. In December,, 1946, the State Government of U.P. had
issued an Ordinance controlling the letting of residential
and non-residential accommodation. This Ordinance was later
enacted as the U.P. (Temporary) Control of Rent and Eviction
Act (No. III) of 1947. The material provisions of this Act
as well as the previous Ordinance require that no premises
could be lord without the permission of the District let out
by the land- Magistrate or other appropriate, authorities
mentioned in that behalf. Thus, the tenancy not having been
proved, the High Court came to the conclusion that it would
be inappropriate to allow any rent to the plaintiff at all.
That is how while confirming the decree for ejectment passed
by the trial Court, the High Court rejected the plaintiff's
case for rent or for mesne profits. It appears that his
claim for future mesne profits was also not upheld.
Against this decree Civil Appeals Nos. 964 and 965 of 1964
have been filed in this Court by the plaintiff and the
defendant respectively with a certificate granted to them by
the High Court in that behalf. The defendant objects to the
decree, for eject-
290
ment, whereas the plaintiff objects to the rejection of his
claim for the past rent and future mesne profits.
Mr. Setalvad for the defendant contends that in confirming
the trial Court's decree for ejectment., the High Court has
made a new case for the plaintiff, and that, according to
him, is not permissible in law. The plaintiff came to the
Court with a clear and specific case of tenancy between him
and the defendant and that case has been rejected by the
High Court. As soon as the plaintiff's case of tenancy was
rejected, Ms claim for ejectment should also have been
negative. In support of this argument Mr. Setalvad has
referred us to the decision of this Court in Trojan & Co.
Ltd. v. Rm. N. N. Nagappa Chettiar(1). In that case, this
Court has observed that it is well-settled that the decision
of a case cannot be based on grounds outside the pleadings
of the parties and it is the case pleaded that has to be
found. It is necessary to remember that these observations
were made in regard to a claim made by the plaintiff for a
certain sum of money on the ground that the defendant had
sold certain shares belonging to him without his
instructions, but he had failed to prove that the sale had
not been authorised by him. The question which the Court
had to consider in the case of Trojan & Co.(,,) was that in
view of the plaintiff's failure to prove his case that the
impugned sale was unauthorised, was it open to him to make a
claim for the same amount on the ground of failure of consi-
deration ? And this Court held that such a claim which was
new and inconsistent with the original case could not be
upheld.
There can be no doubt that if a party asks for a relief on
a clear and specific ground, and in the issues or at the
trial, no other ground is covered either directly or by
necessary implication, it would not be open to the said
party to attempt to sustain the same claim on a ground which
is entirely new.) The same principle was laid down by this
Court in Sheodhar Rai & Others v. Suraj Prasad Singh &
Others(1). In that case, it was held that where the
defendant in his written statement sets up a title to the
disputed lands as the nearest reversionary, the Court
cannot, on his failure to prove the said case, permit him to
make out a new case which is not only not made in the
written statement, but which is wholly inconsistent with the
title set up by the defendant in the written statement. The
new plea on which the defendant sought to rely in that case
was that be was holding the suit property
(1) [1953] S.C.R. 789.
(2) A.I.R. 1954 S.C.R. 758.
291
under a shikmi settlement from the nearest reversioner. It
would be noticed that this new plea was in fact not made in
the written statement, had not been included in any issue
and, therefore, no evidence was or could have been led about
it. In such a case clearly a party cannot be permitted to
justify its claim on a ground which is entirely new and
which is inconsistent with the ground made by it in its
pleadings.
But in considering the application of this doctrine to the
facts of the present case, it is necessary to bear in mind
the other principle that considerations of form cannot over-
ride the legitimate considerations of substance. If a plea
is not specifically made and yet it is covered by an issue
by implication, and the parties knew that the said plea was
involved in the trial, then the mere fact that the plea was
not expressly taken in the pleadings would not necessarily
disentitle a party from relying upon it if it is
satisfactorily proved by evidence. The general rule no
doubt is that the relief should be founded on pleadings made
by the parties. But where the substantial matters relating
to the title of both parties to the suit are touched, though
indirectly or even obscurely in the issues, and evidence has
been led about them, then the argument that a particular
matter was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in every
case. What the Court has to consider in dealing with such
an objection is : did the parties know that the matter in
question, was involved in the trial, and did they lead
evidence about it ? If it appears that the parties did not
know that the matter was in issue at the trial and one of
them has had no opportunity to lead evidence in respect of
'it, that undoubtedly would be a different matter. To allow
one party to rely upon a matter in respect of which the
other party did not lead evidence and has had no opportunity
to lead evidence, would introduce considerations of
prejudice, and in doing justice to one party, the Court
cannot do injustice to another.
Therefore, in dealing with Mr. Setalvad's argument, our
enquiry should not be so much about the form of the
pleadings as their substance; we must find out whether the
ground of licence on which the plaintiff's claim for
ejectment has been confirmed by the High Court was in
substance the subject,-matter of the, trial or not; did the
defendant know that alternatively, the plaintiff would rely
upon the plea of licence and has evidence been given about
the said plea by both the parties or not ? If the answers to
these questions are in favour of the plaintiff, then the
technical
292
objection that the plaint did not specifically make out a
case for licence, would not avail the defendant.
Turning then to the pleadings and evidence in this case,
there can be little doubt that the defendant knew what he
was specifically pleading. He had admitted the title of the
plaintiff in regard to the plot and set up a case as to the
manner in which he spent his own money in constructing the
house. The plaintiff led evidence about the tenancy set up
by We and the defendant led evidence about the agreement on
which he relied. Both the pleas are clear and specific and
the common basis of both the pleas was that the plaintiff
was the owner and the defendant was in possession by Ms
permission. 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 of it by the owner's licence. 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 agreement also had not been established, it
clearly followed that the defendant was in possession of the
suit premises by the leave and licence of the plaintiff.
Once this conclusion was reached, the question as to whether
any relief can be granted to the plaintiff or not was a mere
matter of law, and in deciding this point in favour of the
plaintiff, it cannot be said that any prejudice has been
caused to the defendant.
When Mr. Setalvad was pressing his point about the prejudice
to the defendant and the impropriety of the course adopted
by the High Court in confirming the decree for ejectment on
the ground of licence, we asked him whether he could suggest
to us any other possible plea which the defendant could have
taken if a licence was expressly pleaded by the plaintiff in
the alternative. The only answer which Mr. Setalvad made
was that in the absence of definite instructions, it would
not be possible for him to suggest any such plea. 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 licensee subject to the terms specified by
the written statement ? In effect, the written statement
pleaded licence, subject to the condition that the licensee
was to remain in possession until the amount spent by him
was returned by the plaintiff. This latter plea has been
rejected, while the admission about the permissive character
of the defendant's possession remains. That is
293
how the High Court has looked at the matter and we are
unable to see any error of law in the approach adopted by
the High Court in dealing with it.
In support of its conclusion that in a case like the present
a decree for ejectment can be passed in favour of the
plaintiff,. though the specific case of tenancy set up by
him is not proved, tile High Court has relied upon two of
its earlier Full Bench decisions. In Abdul Ghani v.
Musammat Babni(1), the Allahabad High Court took the view
that in a case where the plaintiff asks for the ejectment of
the defendant on the ground that the defendant is a tenant
of the premises, a decree for ejectment can be passed even
though tenancy is not proved, provided it is established
that the possession of the defendant is that of a licensee.
It is true that in that case, before giving effect to the
finding that the defendant was a licensee, the High Court
remanded the case, because it appeared to the High Court
that part of the case had not been clearly decided. But
once the finding was returned that the defendant was in
possession as a licensee, the High Court did not feel any
difficulty in confirming the decree for ejectment, even
though the plaintiff had originally claimed ejectment on the
ground of tenancy and not specifically on the ground of
licence. To the same effect is the decision of the
Allahabad High Court in the case of Balmakund v. Dalu (2).
It is hardly necessary to emphasise that in a matter of this
kind, it is undesirable and inexpedient to lay down any
general rule. The importance of the pleadings cannot, of
course, be ignored, because it is the 'Pleadings that lead
to the framing of issues and a trial in every civil case has
inevitably to be confined to the issues framed in the suit.
The whole object of framing the issues would be defeated if
parties are allowed to travel beyond them and claim or
oppose reliefs on grounds not made in the pleadings and not
covered by the issues. But cases may occur in which though
a particular plea is not specifically included in the
issues, parties might know that in substance, the said plea
is being tried and might lead evidence about it. It is only
in such a case where the Court is satisfied that the ground
on which reliance is placed by one or the other of the
parties, was in substance, at issue between them and that
both of them have had opportunity to lead evidence about it
at the trial that the formal requirement of pleadings can be
relaxed. In the present case,. having regard to all the
facts, we are unable to hold that the High Court erred in
confirming the decree for ejectment passed by the
(1) I.L.R. 25 All. 256.
(2) I.L.R. 25 All. 498.
294
trial Court on the ground that the defendant was in
possession of the suit premises as a licensee. In this
case, the High Court was obviously impressed by the thought
that once the defendant was shown to be in possession of the
suit premises as a licensee, it would be futile to require
the plaintiff to file another suit against the defendant for
ejectment on that basis. We are not prepared to hold that
in adopting this approach in the circumstances of this case,
the High Court can be said to have gone wrong in law.
The result is, the appeal preferred by the defendant fails
and is dismissed.
That takes us to the appeal preferred by the plaintiff.
This appeal is confined to the plaintiff's case for past
rent and future mesne profits, As we have, already
indicated, the judgment of the High Court seems to suggest
that the High Court set aside the trial Court's decree for
Rs. 5,700 as well as for the payment of future mesne
profits. It is true that the judgment is somewhat ambiguous
oil this point, but the decree drawn is clear and it shows
that the plaintiffs claim both for past rent and future
mesne profits has been rejected by the High Court. the
application for leave to appeal to this Court presented by
the plaintiff in the, High Court has expressly challenged
the decree passed by the High Court both in regard to the
past rent and the future mesne profits. In fact, the
valuation of the appeal has been placed at over Rs. 20,000
on that basis. So, there can be no doubt that the
plaintiff's appeal is directed against the refusal of the
High Court to grant past rent as well as future mesne
profits.
In regard to the plaintiffs claim for past rent, we see no
reason to interfere with the decree passed by the High
Court. But we do not see how the High Court's decree in
relation to future mesne profits can be sustained. Once it
is held that the plaintiff is entitled to eject the
defendant, it follows that from the date of the decree
granting the relief of ejectment to the plaintiff, the
defendant who remains in possession of the property despite
the decree, must pay mesne profits or damages for use and
occupation of the said property until it is delivered to the
plaintiff. A decree for ejectment in such a case must be
accompanied by a direction for payment of the future mesne
profits or damages. Then as to the rate at which future
mesne profits can be awarded to the plaintiff, we see no
reason to differ from the view taken by the trial Court that
the reasonable amount in the present case would be Rs. 300
per month.
295
In the result, the plaintiff's appeal is partly allowed and
a decree is passed in his favour directing the defendant to
pay to ,he plaintiff future mesne profits at the rate of Rs.
300 p.m. from '.he date of the trial Court's decree, i.e.,
16th October, 1958, until the date of delivery of possession
of the property in suit to the plaintiff. In the
circumstances of this case, we direct that parties should
bear own costs in both the appeals.
Appeal allowed in part.
296
BHAGWATI PRASAD
Vs.
RESPONDENT:
SHRICHANDRAMAUL
DATE OF JUDGMENT:
19/10/1965
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
RAMASWAMI, V.
CITATION:
1966 AIR 735 1966 SCR (2) 286
CITATOR INFO :
R 1980 SC 727 (10)
RF 1987 SC1242 (6)
ACT:
Practice & Procedure-Details in pleadings-When deemed
sufficient.
Licensee Ejected, if liable to pay mesne profits.
HEADNOTE:
The respondent filed a suit alleging that he was the owner
of a house let out to the appellant as a tenant and claimed
a decree for the appellant's ejectment, arrears of rent and
future mesne profits. The appellant admitted that the land
over which the house had been constructed belonged to the
respondent but pleaded that the house had been constructed
by the appellant at his own cost on the condition that he
would continue to occupy it until the amount spent by him on
the construction was. repaid to him by the respondent. The
trial court disbelieved the appellant's version and also
disbelieved the agreement as to the rent on which the
respondent relied and held that the relationship of landlord
and tenant had been proved and that the respondent was
entitled to a decree for ejectment as well as to a reduced
-amount by way of rent and directed the appellant to pay
damages by way of use and occupation till the date of
ejectment. On appeal the High Court held that the appellant
must be deemed to have been in possession of the house as a
licensee and treating the respondent's claim for ejectment
on the basis that the appellant was proved to be a licensee
of the premises, the High Court confirmed the decree for
ejectment; but it set aside the decree to pay past rent and
mesne profits being of the view that even if the res-
pondent's case about the tenancy had been proved, such a
tenancy would have been invalid because of the relevant
statutory provisions then prevailing in the area. Both the
appellant and respondent appealed to this Court :
HELD : If a party asked for a relief on a clear and specific
ground, and in the issues or at the trial, no other ground
was covered either directly or by necessary implication, it
would not be open to the said party to attempt to sustain
the same claim on a ground which is entirely new. But where
the substantial matters relating to the title of both the
parties to the suit are touched, though indirectly, in the
issues, and evidence has been led about them, then the
argument that a particular matter was not expressly taken in
the pleadings would be purely fornication and technical and
cannot succeed in every case. What the court has to
consider in dealing with such an objection is : did the
parties know that the matter in question was involved in the
trial, and did they lead evidence about it ? If it appears
that the parties did not know that the matter was in issueat
the trial and one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly would be a
different matter [290 F; 291 D-F]
In the present case, having regard to all the facts, the
High Court did not err in confirming the decree for
ejectment on the ground that the appellant was in possession
of the suit premises as a licensee. On the pleas taken by
the appellant in his written statement in clear and unambi-
guous language, only two issues could arise between the
parties : is the
287
appellant the tenant of the respondent or is he holding the
property as the licensee subject to the terms specified in
the written statement? In effect, the written statement
pleaded licence, subject to the condition that the licensee
was to remain in possession until the amount spent by him
was returned by the respondent. [292 G-H]
Trojan & Co. Ltd. v. Rm. N. N. Nagappa Chettiar, [1953]
S.C.R. 789 and Sheodhar Rai & Ors. v. Suraj Prasad Singh &
Ors., A.I.R. 1954 S.C. 758, referred to.
In regard to the respondent's claim for past 'rent, no
interference was called for with the decree passed by the
High Court, but its decree in relation to future mesne
profits could not be sustained. Once it was held that the
respondent was entitled to eject the appellant it followed
that from the date of the decree granting the relief
ejectment to the respondent the appellant who remained in
possession of the property despite the decree, must pay
mesne profits or damages for use and occupation of the said
property until it was delivered to the respondent. A decree
for ejectment in such a case must be accompanied by a
direction for payment of the future mesne profits or
damages. [294F-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 964 and
965 of 1964.
Appeals from the judgments and decree dated December 14,
1962 of the Allahabad High Court in First Appeal No. 564 of
1958.
M. C. Setalvad, J. P. Goyal, for appellant (In C. A. No.
964of 1964) and respondent (In C.A. No. 965 of 1964).
A. Ranganadham Chetty, E. C. Agarwala and P. C. Agarwala,
for respondent (In C.A. No. 964 of 1964) and appellant (In
C.A. No. 965 of 1964).
The Judgment of the Court was delivered by
Gajendragadkar, C.J. These two cross appeals arise from a
suit filed by Chandramaul (hereinafter called the plaintiff)
against Bhagwati Prasad (hereinafter called the defendant)
in the Court of the Second Civil Judge, Kanpur. The,
plaintiff' alleged that he was the owner of house No. 59/8,
Nachghar, Birhana Road, Kanpur and that he had let out the
said house. to the defendant as his tenant. According to
the plaint, the plaintiff and the defendant were friends and
enjoyed mutual confidence. As the house was being
constructed, the defendant wanted some premises for
residence, and so, when the ground floor was constructed he
was let in as a tenant by the plaintiff on a monthly rent of
Rs. 150 in 1947. In 1948, the first floor was completed and
the defendant took that portion as well as a tenant on an
additional rent of Rs. 150 p.m. By 1950, another floor had
been added and the defendant was given the said floor as
Sup.C.I./66- 5
288
well on a further additional rent of Rs. 150 p.m. Thus, the
defendant was in possession of the house as a tenant of the
plaintiff on the condition that he was to pay Rs. 450 p.m.
as rent. The defendant continued to pay this rent and was
not in arrears in that behalf as on the 31st March, 1954.
Thereafter, he failed to pay the rent, and so, the plaintiff
terminated his tenancy and brought the present suit on the
30th November, 1955 claiming ejectment against the defendant
and a decree for Rs. 8,550 as arrears of rent from the 1st
April, 1954 to the end of October, 1955. Future mesne
profits were also claimed.
The defendant admitted that the land over which the house
stood belonged to the plaintiff. He, however, pleaded that
the house had been constructed by the defendant at his own
cost and that too at the request of the plaintiff, because
the plaintiff had no funds to construct the building on his
own. Having constructed the house at his own cost, the
defendant went into possession of the house on condition
that the defendant would continue to occupy the house until
the amount spent by him on the construction was repaid to
him by the plaintiff. According to the defendant, he had
spent Rs. 32,704-1-0 on the construction of the house.
Basing himself on this agreement, the defendant resisted the
claim made by the plaintiff for ejectment as well as for
rent.
On these pleadings, the learned trial Judge framed seven
issues. He disbelieved the defendant's version in regard to
the construction of the house and found that the agreement
set up by him in that behalf on the basis that he spent the
money on the construction of the house himself, had not been
established. He also disbelieved the plaintiffs case about
the agreement as to rent ,on which the plaintiff relied.
According to the trial Judge, the defendant had admitted the
ownership of the plaintiff, and having regard to the
pleadings and the evidence adduced by the parties, he came
to the conclusion that the relationship of landlord and
tenant had been proved. Having made this specific basic
finding, the learned trial Judge held that the suit was
competent and came to the conclusion that the plaintiff was
entitled to a decree for ejectment as well as for rent.
In regard to the amount of rent, however, the learned trial
Judge did not accept the plaintiff's version and considered
the question on the merits. He held that Rs. 300 p.m. would
be a reasonable rent for the premises in question. That is
how he passed a decree for Rs. 5,700 in favour of the
plaintiff as arrears of rent from 1st April, 1954 up to the
31st October, 1955. The
289
decree further directed the defendant to pay damages by way
of use and occupation at the rate of Rs. 300 p.m. till the
date of ejectment.
Against this decree the defendant preferred an appeal before
the Allahabad High Court. The High Court has agreed with
the trial Court in disbelieving the defendant's version
about the construction of the house and about the terms and
conditions on which he had been let into possession. The
High Court was also not satisfied with the plaintiff's
version about the tenancy between him and the defendant.
Having regard to the fact that the defendant had virtually
admitted the title of the plaintiff, the High Court held
that the defendant must be deemed to have been in possession
of the house as a licensee; and treating the plaintiff's
claim for ejectment on the basis that the defendant was
proved to be a licensee of the premises, the High Court has
confirmed the decree for ejectment passed by the trial
Court.
It has, however set aside the said decree insofar as it
directed the defendant to pay past rent at the rate of Rs.
300 p.m. This decision was the result of the fact that the
High Court was not satisfied that the plaintiff had
established any of the terms of the tenancy. In that
connection, the High Court has referred to the fact that
even if the plaintiffs case about the tenancy had been
proved, such a tenancy would have been invalid because of
the relevant statutory provisions then prevailing in the
area. In December,, 1946, the State Government of U.P. had
issued an Ordinance controlling the letting of residential
and non-residential accommodation. This Ordinance was later
enacted as the U.P. (Temporary) Control of Rent and Eviction
Act (No. III) of 1947. The material provisions of this Act
as well as the previous Ordinance require that no premises
could be lord without the permission of the District let out
by the land- Magistrate or other appropriate, authorities
mentioned in that behalf. Thus, the tenancy not having been
proved, the High Court came to the conclusion that it would
be inappropriate to allow any rent to the plaintiff at all.
That is how while confirming the decree for ejectment passed
by the trial Court, the High Court rejected the plaintiff's
case for rent or for mesne profits. It appears that his
claim for future mesne profits was also not upheld.
Against this decree Civil Appeals Nos. 964 and 965 of 1964
have been filed in this Court by the plaintiff and the
defendant respectively with a certificate granted to them by
the High Court in that behalf. The defendant objects to the
decree, for eject-
290
ment, whereas the plaintiff objects to the rejection of his
claim for the past rent and future mesne profits.
Mr. Setalvad for the defendant contends that in confirming
the trial Court's decree for ejectment., the High Court has
made a new case for the plaintiff, and that, according to
him, is not permissible in law. The plaintiff came to the
Court with a clear and specific case of tenancy between him
and the defendant and that case has been rejected by the
High Court. As soon as the plaintiff's case of tenancy was
rejected, Ms claim for ejectment should also have been
negative. In support of this argument Mr. Setalvad has
referred us to the decision of this Court in Trojan & Co.
Ltd. v. Rm. N. N. Nagappa Chettiar(1). In that case, this
Court has observed that it is well-settled that the decision
of a case cannot be based on grounds outside the pleadings
of the parties and it is the case pleaded that has to be
found. It is necessary to remember that these observations
were made in regard to a claim made by the plaintiff for a
certain sum of money on the ground that the defendant had
sold certain shares belonging to him without his
instructions, but he had failed to prove that the sale had
not been authorised by him. The question which the Court
had to consider in the case of Trojan & Co.(,,) was that in
view of the plaintiff's failure to prove his case that the
impugned sale was unauthorised, was it open to him to make a
claim for the same amount on the ground of failure of consi-
deration ? And this Court held that such a claim which was
new and inconsistent with the original case could not be
upheld.
There can be no doubt that if a party asks for a relief on
a clear and specific ground, and in the issues or at the
trial, no other ground is covered either directly or by
necessary implication, it would not be open to the said
party to attempt to sustain the same claim on a ground which
is entirely new.) The same principle was laid down by this
Court in Sheodhar Rai & Others v. Suraj Prasad Singh &
Others(1). In that case, it was held that where the
defendant in his written statement sets up a title to the
disputed lands as the nearest reversionary, the Court
cannot, on his failure to prove the said case, permit him to
make out a new case which is not only not made in the
written statement, but which is wholly inconsistent with the
title set up by the defendant in the written statement. The
new plea on which the defendant sought to rely in that case
was that be was holding the suit property
(1) [1953] S.C.R. 789.
(2) A.I.R. 1954 S.C.R. 758.
291
under a shikmi settlement from the nearest reversioner. It
would be noticed that this new plea was in fact not made in
the written statement, had not been included in any issue
and, therefore, no evidence was or could have been led about
it. In such a case clearly a party cannot be permitted to
justify its claim on a ground which is entirely new and
which is inconsistent with the ground made by it in its
pleadings.
But in considering the application of this doctrine to the
facts of the present case, it is necessary to bear in mind
the other principle that considerations of form cannot over-
ride the legitimate considerations of substance. If a plea
is not specifically made and yet it is covered by an issue
by implication, and the parties knew that the said plea was
involved in the trial, then the mere fact that the plea was
not expressly taken in the pleadings would not necessarily
disentitle a party from relying upon it if it is
satisfactorily proved by evidence. The general rule no
doubt is that the relief should be founded on pleadings made
by the parties. But where the substantial matters relating
to the title of both parties to the suit are touched, though
indirectly or even obscurely in the issues, and evidence has
been led about them, then the argument that a particular
matter was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in every
case. What the Court has to consider in dealing with such
an objection is : did the parties know that the matter in
question, was involved in the trial, and did they lead
evidence about it ? If it appears that the parties did not
know that the matter was in issue at the trial and one of
them has had no opportunity to lead evidence in respect of
'it, that undoubtedly would be a different matter. To allow
one party to rely upon a matter in respect of which the
other party did not lead evidence and has had no opportunity
to lead evidence, would introduce considerations of
prejudice, and in doing justice to one party, the Court
cannot do injustice to another.
Therefore, in dealing with Mr. Setalvad's argument, our
enquiry should not be so much about the form of the
pleadings as their substance; we must find out whether the
ground of licence on which the plaintiff's claim for
ejectment has been confirmed by the High Court was in
substance the subject,-matter of the, trial or not; did the
defendant know that alternatively, the plaintiff would rely
upon the plea of licence and has evidence been given about
the said plea by both the parties or not ? If the answers to
these questions are in favour of the plaintiff, then the
technical
292
objection that the plaint did not specifically make out a
case for licence, would not avail the defendant.
Turning then to the pleadings and evidence in this case,
there can be little doubt that the defendant knew what he
was specifically pleading. He had admitted the title of the
plaintiff in regard to the plot and set up a case as to the
manner in which he spent his own money in constructing the
house. The plaintiff led evidence about the tenancy set up
by We and the defendant led evidence about the agreement on
which he relied. Both the pleas are clear and specific and
the common basis of both the pleas was that the plaintiff
was the owner and the defendant was in possession by Ms
permission. 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 of it by the owner's licence. 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 agreement also had not been established, it
clearly followed that the defendant was in possession of the
suit premises by the leave and licence of the plaintiff.
Once this conclusion was reached, the question as to whether
any relief can be granted to the plaintiff or not was a mere
matter of law, and in deciding this point in favour of the
plaintiff, it cannot be said that any prejudice has been
caused to the defendant.
When Mr. Setalvad was pressing his point about the prejudice
to the defendant and the impropriety of the course adopted
by the High Court in confirming the decree for ejectment on
the ground of licence, we asked him whether he could suggest
to us any other possible plea which the defendant could have
taken if a licence was expressly pleaded by the plaintiff in
the alternative. The only answer which Mr. Setalvad made
was that in the absence of definite instructions, it would
not be possible for him to suggest any such plea. 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 licensee subject to the terms specified by
the written statement ? In effect, the written statement
pleaded licence, subject to the condition that the licensee
was to remain in possession until the amount spent by him
was returned by the plaintiff. This latter plea has been
rejected, while the admission about the permissive character
of the defendant's possession remains. That is
293
how the High Court has looked at the matter and we are
unable to see any error of law in the approach adopted by
the High Court in dealing with it.
In support of its conclusion that in a case like the present
a decree for ejectment can be passed in favour of the
plaintiff,. though the specific case of tenancy set up by
him is not proved, tile High Court has relied upon two of
its earlier Full Bench decisions. In Abdul Ghani v.
Musammat Babni(1), the Allahabad High Court took the view
that in a case where the plaintiff asks for the ejectment of
the defendant on the ground that the defendant is a tenant
of the premises, a decree for ejectment can be passed even
though tenancy is not proved, provided it is established
that the possession of the defendant is that of a licensee.
It is true that in that case, before giving effect to the
finding that the defendant was a licensee, the High Court
remanded the case, because it appeared to the High Court
that part of the case had not been clearly decided. But
once the finding was returned that the defendant was in
possession as a licensee, the High Court did not feel any
difficulty in confirming the decree for ejectment, even
though the plaintiff had originally claimed ejectment on the
ground of tenancy and not specifically on the ground of
licence. To the same effect is the decision of the
Allahabad High Court in the case of Balmakund v. Dalu (2).
It is hardly necessary to emphasise that in a matter of this
kind, it is undesirable and inexpedient to lay down any
general rule. The importance of the pleadings cannot, of
course, be ignored, because it is the 'Pleadings that lead
to the framing of issues and a trial in every civil case has
inevitably to be confined to the issues framed in the suit.
The whole object of framing the issues would be defeated if
parties are allowed to travel beyond them and claim or
oppose reliefs on grounds not made in the pleadings and not
covered by the issues. But cases may occur in which though
a particular plea is not specifically included in the
issues, parties might know that in substance, the said plea
is being tried and might lead evidence about it. It is only
in such a case where the Court is satisfied that the ground
on which reliance is placed by one or the other of the
parties, was in substance, at issue between them and that
both of them have had opportunity to lead evidence about it
at the trial that the formal requirement of pleadings can be
relaxed. In the present case,. having regard to all the
facts, we are unable to hold that the High Court erred in
confirming the decree for ejectment passed by the
(1) I.L.R. 25 All. 256.
(2) I.L.R. 25 All. 498.
294
trial Court on the ground that the defendant was in
possession of the suit premises as a licensee. In this
case, the High Court was obviously impressed by the thought
that once the defendant was shown to be in possession of the
suit premises as a licensee, it would be futile to require
the plaintiff to file another suit against the defendant for
ejectment on that basis. We are not prepared to hold that
in adopting this approach in the circumstances of this case,
the High Court can be said to have gone wrong in law.
The result is, the appeal preferred by the defendant fails
and is dismissed.
That takes us to the appeal preferred by the plaintiff.
This appeal is confined to the plaintiff's case for past
rent and future mesne profits, As we have, already
indicated, the judgment of the High Court seems to suggest
that the High Court set aside the trial Court's decree for
Rs. 5,700 as well as for the payment of future mesne
profits. It is true that the judgment is somewhat ambiguous
oil this point, but the decree drawn is clear and it shows
that the plaintiffs claim both for past rent and future
mesne profits has been rejected by the High Court. the
application for leave to appeal to this Court presented by
the plaintiff in the, High Court has expressly challenged
the decree passed by the High Court both in regard to the
past rent and the future mesne profits. In fact, the
valuation of the appeal has been placed at over Rs. 20,000
on that basis. So, there can be no doubt that the
plaintiff's appeal is directed against the refusal of the
High Court to grant past rent as well as future mesne
profits.
In regard to the plaintiffs claim for past rent, we see no
reason to interfere with the decree passed by the High
Court. But we do not see how the High Court's decree in
relation to future mesne profits can be sustained. Once it
is held that the plaintiff is entitled to eject the
defendant, it follows that from the date of the decree
granting the relief of ejectment to the plaintiff, the
defendant who remains in possession of the property despite
the decree, must pay mesne profits or damages for use and
occupation of the said property until it is delivered to the
plaintiff. A decree for ejectment in such a case must be
accompanied by a direction for payment of the future mesne
profits or damages. Then as to the rate at which future
mesne profits can be awarded to the plaintiff, we see no
reason to differ from the view taken by the trial Court that
the reasonable amount in the present case would be Rs. 300
per month.
295
In the result, the plaintiff's appeal is partly allowed and
a decree is passed in his favour directing the defendant to
pay to ,he plaintiff future mesne profits at the rate of Rs.
300 p.m. from '.he date of the trial Court's decree, i.e.,
16th October, 1958, until the date of delivery of possession
of the property in suit to the plaintiff. In the
circumstances of this case, we direct that parties should
bear own costs in both the appeals.
Appeal allowed in part.
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