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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

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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

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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

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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

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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

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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

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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

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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