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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 626 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