Case: Commodore B.Y. Wad Vs. Rallis India Limited

they were not interested in the flat or in retaining possession thereof nor were they liable to pay compensation from 1st January 1975..." (7) Similar averments were made by the 1st respondent in the written statement filed by them in the 2nd respondents suit. Thus the 1st respondent was admitting that they were no longer interested in the flat or in retaining possession of the flat.(8) Both the suits were tried together. The trial court held that the 2nd respondent had failed to prove any relationship of landlord and tenant between him and the appellant. In view of this finding and in view of the admission, in the written statement, by the 1st respondent-company a decree for eviction should have been passed. Instead by a common judgment the trial court proceeded to dismiss both the suits.(9) The appellant and 2nd respondent filed appeals against this judgment. In this appeal the appellant sought to amend the plaint by taking a plea that a decree should be passed in their favour in view of the admission made by the 1st respondent in the written statement. That amendment application was rejected by order dated 19-4-1995. Thereafter, by two separate judgments dated 22-12-1995 both the appeals were dismissed. As against this dismissal both parties filed writ petitions before the High Court. The writ petition filed by the appellant challenged not only the order dated 22-12-1995 but also the order dated 19-4-1995. The High Court has, by the impugned judgment, dismissed both the writ petitions. While dismissing the writ petitions the High Court confirmed the finding of the lower courts that the 2nd respondent had failed to make out a case that he was a tenant of the appellant. The High Court still dismissed the writ petition of the appellant on the ground that the 2nd respondent was a trespasser and therefore the remedy of the appellant was to file a suit in a civil court. The High Court held that the small causes court would not have the jurisdiction to entertain such a suit. (10) In our view, the law is well settled by authorities of this Court. In the case of Srinivas Ram Kumar v. Mahabir Prasad and Ors., it has been held that even though the plaintiff may not have claimed relief on a particular ground or may have claimed relief on a different ground, if in the written statement a case is set up by the defendant then on the basis of such written statement a decree can be granted to the plaintiff. This principle has been affirmed by this Court in the case of JJ Lal Pvt. Ltd. and Ors. v. MR. Murali and Anr. wherein it has been categorically laid down as follows: "...To sum up, the gist of holding in Firm Srinivas Ram Kumar case [AIR 1951 SC 177 ] is: If the facts stated and pleading raised in the written statement, though by way of defence to the case of the plaintiff, are such which could have entitled the plaintiff to a relief in the alternative, the plaintiff may rely on such pleading of the defendant and claim an alternate decree based thereon subject to four conditions being satisfied viz. (i) the statement of case by the defendant in his written statement amounts to an express admission of the facts entitling the plaintiff to an alternative relief, (ii) in granting such relief the defendant is not taken by surprise, (iii) no injustice can possibly result to the defendant, and (iv) though the plaintiff would have been entitled to the same relief in a separate suit the interests of justice demand that the plaintiff not being driven to the need of filing another suit.." (11) ln the case of South Asia Industries Pvt. Ltd. v. S. Sarup Singh and Ors., it has been held that in a suit for ejectment of a tenant, a decree for ejection can be passed even against other persons who are in possession. In the case of M/s Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala and Ors., it has been held that a sub-tenant may not be a necessary party but he is proper party in a suit for ejectment of a tenant. It has been held that merely because a sub-tenant has been joined the nature of the suit does not get altered. It must be mentioned that the Act prohibits subletting without consent of the landlord. Thus a sub-tenant would be in the same position as a trespasser. This position is reiterated in Thakker Keshavalal Mohanlal v. Parekh Amrutlal Harilal and Ors., wherein it is held that there is no substance in the contention that the rent court had no jurisdiction to entertain a suit merely because a person who was not the tenant has been made a party to the suit. (12) Thus the law is clear. On the basis of the admission, by the 1st respondent- company that they were no longer interested in the said flat and were not interested in retaining possession of the said flat a decree could and should have been passed. To be remembered that all courts have held that the 2nd respondent was not a tenant of the appellant. It was held that 2nd respondent was merely a trespasser, the appellant was entitled to a decree for eviction even against the 2nd respondent. Merely because the 2nd respondent was a party to the eviction suit did not alter the nature of the suit. The suit remained an eviction suit between a landlord, viz, the appellant and a tenant, viz, the 1st respondent. In the suit the 2nd respondent was a proper party. The courts below were therefore wrong in dismissing the appellants suit. The High Court was wrong in not entertaining the writ petition of the appellant.(13) We see no substance in civil appeal no. 595 of 2000. We agree with the concurrent finding of fact that the 2nd respondent has failed to prove that he was the tenant of the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds](10) In our view, the law is well settled by authorities of this Court. In the case of Srinivas Ram Kumar v. Mahabir Prasad and Ors., it has been held that even though the plaintiff may not have claimed relief on a particular ground or may have claimed relief on a different ground, if in the written statement a case is set up by the defendant then on the basis of such written statement a decree can be granted to theThus the law is clear. On the basis of the admission, by the 1st respondentcompany that they were no longer interested in the said flat and were not interested in retaining possession of the said flat a decree could and should have been passed. To be remembered that all courts have held that the 2nd respondent was not a tenant of the appellant. It was held that 2nd respondent was merely a trespasser, the appellant was entitled to a decree for eviction even against the 2nd respondent. Merely because the 2nd respondent was a party to the eviction suit did not alter the nature of the suit. The suit remained an eviction suit between a landlord, viz, the appellant and a tenant, viz, the 1st respondent. In the suit the 2nd respondent was a proper party. The courts below were therefore wrong in dismissing the appellants suit. The High Court was wrong in not entertaining the writ petition of the appellant.(13) We see no substance in civil appeal no. 595 of 2000. We agree with the concurrent finding of fact that the 2nd respondent has failed to prove that he was the tenant of the appellant.