1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 90 OF 1992 Smt.Krishnabai Narayan Ghosalkar & ors. ... Appellants v/s Manohar Narayan Rele (since deceased through legal heirs) 1A. Prafulla Manohar Rele 1B. Uma Kishor Rele ... Respondents Mr.Rajiv L. Patil for the appellants. Mr.N.M.Ganguli for the respondents. CORAM: SMT.NISHITA MHATRE, J. JUDGMENT RESERVED ON: 24.08.2009 JUDGMENT DELIVERED ON: 16.10.2009 ORAL JUDGMENT: 1. The present appeal has been preferred against the judgment in Civil Appeal No.33 of 1987 by which the Additional District Judge, Raigad at Alibag, has allowed the appeal filed by the plaintiffs. The defendants i.e. the appellants herein have been directed to hand over the vacant 2 possession of the suit premises which belong to the plaintiffs within 60 days from the date of the order. By passing the impugned judgment and decree, the Appellate Court has reversed the findings of the Trial Court, dismissing the suit. 2. The facts giving rise to the present appeal are as follows :- The plaintiff i.e. the father of the respondents herein claimed to be the owner of the house bearing Gram Panchayat No.105 in Village Revdanda. The plaintiff claimed that he had put the defendants i.e. the appellants herein, in possession of the aforesaid premises for their residence without any rent or consideration. According to the plaintiff, his natural father Purshottam Shridhar Mukadam requested him to give the aforesaid premises to the father of the defendants 28 years prior to the filing of the suit. The defendants’ father had used the premises gratis. After the death of the father of the defendants in February 1978, the plaintiff sought to evict the defendants by issuing a notice dated 16.12.1983. The defendants replied to the notice contending that they were tenants in the suit premises and that they were paying rent to the plaintiff. They also contended in reply to the notice of the plaintiff that he was 3 not issuing rent receipts to them. This letter was replied by the plaintiff denying the contents and by way of abundant precaution sought possession of the suit premises under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (in short, “the Bombay Rent Act”). The plaintiff filed Regular Civil Suit No.87 of 1984 before the Civil Judge, Jr. Divn., Alibag. Two inconsistent pleas were raised by the plaintiff in the plaint, the first one being that the defendants’ father had been put in possession of the suit premises on humanitarian considerations and that he was in possession of the suit premises, gratis. Secondly, the plaintiff contended that he was entitled to recover possession of the suit premises under the provisions of the Bombay Rent Act on the grounds of bonafide requirement and causing nuisance and annoyance to the plaintiff and neighbours as well as causing damage to the suit premises. 3. The defendants denied the contentions raised by the plaintiff by filing their written statement. It was contended that their father had been residing as a tenant of the plaintiff for 28 years and had been paying rent at the rate of Rs.12/- per month to the plaintiff. This amount was increased by Rs. 1/- in the year 1960 after the plaintiff permitted defendants to use the swing in the suit premises. All other allegations 4 contained in the plaint were denied by the defendants. As regards the contentions with respect to bonafide requirement of the plaintiff for the suit premises, the defendants contended that the plaintiff was the owner of a building in Mumbai and, therefore, the question of requiring the suit premises did not arise. It was also contended that the suit was not valued properly. 4. Evidence was led before the Trial Court by the parties. The plaintiff examined himself and one Narahari Narayan Naik, who claimed to be looking after the suit property for and on behalf of the plaintiff. Defendant No.2 deposed on behalf of the defendants. 5. The Trial Court concluded that the plaintiff had not proved that he had allowed the defendants to reside in the suit premises, gratis. It was further held that the defendants had proved that they were monthly tenants of the suit premises. The Trial Court further held that the plaintiff had not proved that he required the suit premises for his personal use and occupation and that greater hardship would be caused to the defendants if a decree of possession was passed. All other allegations made by the plaintiff have not been proved according to the Trial Court. 5 6. Aggrieved by the decision of the Trial Court, the plaintiff filed an appeal before the District Judge, Alibag being Civil Appeal No.33 of 1987. The Appellate Court reversed the findings of the Trial Court and held that the plaintiff had proved that he had permitted the deceased Narayan Ghosalkar and the members of his family who were the defendants, to reside in the suit premises without any consideration and on humanitarian grounds. The appellate Court did not concur with the view of the Trial Court that the defendants were tenants. It was further held that the plaintiff had proved that he had validly terminated the license in favour of the defendants by the notice dated 16.12.1983 and that the heirs of the original plaintiff were entitled to possession of the suit premises. 7. The appeal has been admitted on the following substantial questions of law :- (i) Whether the appellants / defendants are protected tenants under the provisions of Bombay Rent Act as they were continuously paying the rent to the landlord in respect of the suit premises for over 30 years ? (ii) To prove the case of nuisance the plaintiff has to 6 adduce his own evidence and the burden to prove such nuisance lies upon the plaintiff only and not upon the defendants which is shifted to the defendants by the learned District Judge in the present case. (iii) The learned Appellate Court erroneously came to the conclusion that Manohar Rele was not legally authorized to create the tenancy in favour of Narayan Ghosalkar. In my opinion, a further question will have to be framed as: Whether the plaintiff could raise two contradictory pleas in the plaint, namely, that (i) the defendants were permitted to occupy the suit premises gratis; and (ii) that the defendants should be evicted from the suit premises under the provisions of the Bombay Rent Act? 8. Mr.Patil appearing for the appellants points out that the last question as framed, goes to the root of the matter since a plaintiff cannot be permitted to raise two contradictory pleas. He submits that the defendants in a given case may be permitted to raise alternative and 7 contradictory pleas but that liberty is not available to the plaintiff. He submits that the evidence on record which was assessed by the Trial Court indicated that the appellants were in possession of the suit premises as tenants and not at the mercy of the respondents. According to him, the evidence on record did not establish the plaintiff’s case that the defendants were in possession of the suit premises on humanitarian grounds and that they were not paying any consideration or rent to the plaintiff for occupation of the suit premises. He further submits that it was necessary for the plaintiff to elect the plea that he wanted to agitate in the plaint since the two main pleas raised were inconsistent with each other. He therefore submits that the appellate Court has committed an error by reversing the findings of the Trial Court. He further submits that, if the suit is to be treated as one filed under the Bombay Rent Act, then it ought to have been filed before the appropriate Court and not before the Civil Judge, Sr. Divn., Alibag. 9. Mr.Ganguli appearing for the respondents, who are the heirs of the original plaintiff, submits that the appellate Court has rightly reversed the findings of the Trial Court. He then relies on the judgment in the case of Firm Sriniwas Ram Kumar v/s Mahabir Prasad & ors., reported in A.I.R. 8 (1951) SC 177, in support of his submission that alternative and inconsistent allegations can be pleaded by the plaintiff and that there is nothing in the Code of Civil Procedure to prevent a party from raising two or more inconsistent pleas or allegations and claiming relief thereunder, in the alternative. He then points out a judgments of the Gujrat High Court in the case of (i) Narayanprasad Haribhai Majmudar & anr. v/s Merubhai Rayabhai & anr., reported in 1967 Vol.8 Gujrat Law Reporter 897, (ii) V.Tribhovandas & Co. v/s. M/s.Hasmukhlal Jayantilal, reported in 1967 Vol.VIII Gujarat Law Reporter 807; and (iii) New Shorock Mills v/s Somabhai Mathurbhai Patel, reported in 1983 Vol.XXIV (1) Gujrat Law Reporter 172, to buttress this argument. The Gujarat High Court in New Shorock Mill’s case (supra) has relied on the judgment of the Supreme Court in Firm Sriniwas Ram Kumar’s case (supra). Mr.Ganguli also submits by relying on the judgment of the Supreme Court in the case of Khemchand Dayalji & Co. v/s Mohmadbhai Chandbhai, reported in 1970 Vol.XI Gujarat Law Reporter 173. that the Civil Judge, Sr. Divn., Alibag had power to deal with the pleadings under Section 28 of the Bombay Rent Act and that the appellate Court has committed no error by reversing the decision of the Trial Court. 9 10. In the case of Firm Sriniwas Ram Kumar (supra), the Supreme Court was dealing with a case where the plaintiffs had filed a suit for specific performance of a contract to sell a house belonging to the defendant. It was the plaintiff’s case that, after the defendant agreed to sell the house to the plaintiff, he resiled from the same and sold the same to some third person. The plaintiff therefore filed his suit against the vendor as well as the subsequent purchaser. The plaintiff had thus sought the relief of specific performance of the contract and in the alternative he had prayed for a decree for money even if the allegations of the money having been paid in pursuance of the contract of sale could not be established by evidence. In these circumstances, the Supreme Court held thus :- “A plaintiff may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant 10 himself makes. A demand of the plaintiff based on the defendant’s own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.” Thus, in this case the Supreme Court dealt with a suit for specific performance in which the alternate relief claimed was for damages. In the present case, in my opinion, the pleas regarding the defendants being in possession, gratis and the other being in possession as tenants cannot be said to be alternative allegations but are independent, inconsistent and contradictory pleas. Therefore, the aforesaid judgment of the Supreme Court in the case of Firm Srinivas Ram Kumar (supra) is not applicable to the facts and circumstances in the present case. 11. Mr.Ganguli also laid emphasis on the judgment of the Gujrat High Court in the case of New Shorock Mills (supra). It was observed by the Court that the plaintiff in that case had sought possession of the suit premises on the ground that the defendant was his licensee and that his license to use and occupy the suit premises came to be terminated on his retirement from service. The Trial Court held on the basis of the alternative plea taken by the plaintiff 11 that he was entitled to recover possession under the provisions of Section 13(1)(f) of the Bombay Rent Act. The Court held that there would be no error or no impropriety in decreeing the suit based upon the case which the defendant himself makes out. 12. The question therefore is, whether the plaintiff is entitled to raise the aforesaid inconsistent pleas. A suit for eviction filed under the Bombay Rent Act by a landlord against his tenant would lie before the Small Causes Court. If the contention of the plaintiff is to be accepted that, the defendants were licensees as has been accepted by the appellate Court, the suit must lie before the Court of Small Causes. In the present case, the suit has been filed contending that the defendants are gratis licensees and in the alternative that they are tenants. The suit no doubt would be therefore maintainable before the Small Causes Court. However, assuming the Civil Judge, Sr. Divn., Alibag had the power to deal with the present suit, the two pleas raised by the plaintiff being diametrical opposite to each other, the suit could not have been decreed. The defendant cannot be both, a gratuitous licensee and a tenant . It was necessary for the plaintiff to elect whether he chose to maintain that the defendants were tenants or gratuitous 12 licensees. The Trial Court has rightly dismissed the suit on the ground that the plaintiff had not established that the defendants are gratuitous licensees. 13. In these circumstances, in my opinion, the Appellate Court could not have reversed the findings by concluding that the defendants were gratuitous licensees. It appears that the judgment of the learned Single Judge of this Court, in the case of Vallabhdas Bhagwandas Sampat v/s Gopaldas Keshavji Sampat, reported in 1991 Bom.R.C. 44, has weighed the appellate Court. However, this judgment does not carry the case of the respondents any further. The submission of Mr.Ganguli that the appellate Court has rightly decreed the suit cannot be accepted. 14. It is now well settled that a plaintiff may seek reliefs in the alternative. However, when the contentions raised are not in the alternative but in fact the pleadings are mutually opposite, such pleas cannot be raised by the plaintiff. There is an essential difference between contradictory pleas and alternative pleas. When the plaintiff claims relief in the alternative, the cause of action for the reliefs claimed is the same. However, when contradictory pleas are raised, such as in the present case, the foundation for these 13 contradictory pleas is not the same. When the plaintiff proceeds on the footing that the defendant is a gratuitous licensee, he would have to establish that no rent or consideration was paid for the premises. Whereas, if he seeks to evict the defendant under the Rent Act, the plaintiff accepts that the defendant is in possession of the premises as a tenant and liable to pay rent. Thus, the issue whether rent is being paid becomes fundamental to the decision. Therefore, in my opinion, the plea that the defendant is occupying the suit premises gratuitously is not compatible with the plea that the defendant is a tenant and therefore can be evicted under the Rent Act. 15. Thus, the judgment and order of the appellate Court is set aside and the decree passed by the Trial Court revives. 16. Appeal allowed accordingly. No order as to costs. ..... 14