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 section 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 225per 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 wef 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 225per 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 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 vs Mt Saran and others1 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 vs Jaswant Singh2
To the same effect is the view expressed in another decision of this Court in Bachan Singh vs Dhian Dass and others3
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 4h 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 121A 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 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 121 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 AIR 1966 SC
3 AIR 1974 SC 708
629 1961 Act however the definition of tenant has been widened and Section 2i 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 vs Parashram and others1 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 131 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 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 21 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 11976 Suppl
SCR 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 vs Kamlakar and others1 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 vs Kartik Chandra Das and others2 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 date
They are not therefore liable to pay any damages or mesne profits for 1 2 631 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
SR Appeal allowed in part


Summary:
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 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 section 12 of the Madhya Pradesh Accommodation Control Act 1961
627H 628A D Siddik Mohommed Shah vs Mt Saran and Ors  Bhagat Singh  Ors
vs Jaswant Singh AIR 1966 SC 1861 and Bachan Singh vs Dhian Dass  Ors
AIR 1974 SC 708 applied
2A 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 clauseh of section 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 section 121 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 section 121 f of the Act628E F 3As per the widened definition of tenant  in section 21 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 vs 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 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 vs Kamlakar and Ors
1974 MP Law Journal 485 over ruled
Ganga Dutt Murarka vs Kartik Chandra Das  Ors   distinguished