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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  50 OF 2014 (Arising out of S.L.P. (C) No.4719 of 2010)

Praful Manohar Rele …Appellant

Versus

Smt. Krishnabai Narayan  Ghosalkar & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal arises out of a judgment and order dated  

16th October, 2009 passed by the High Court of Judicature at  

Bombay whereby the High Court has allowed Civil Second  

Appeal No.90 of 1992 set aside the judgment and decree  

passed by the Additional District Judge in Civil Appeal No.33  

of  1987  and  restored  that  passed  by  the  Trial  Court  

dismissing Regular  Civil  Suit  No.87  of  1984.   The  factual  

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backdrop in which the dispute arose may be summarized as  

under:                         

3. Manohar  Narayan  Rele  owned  a  house  bearing  

Panchayat No.105 situate in village Ravdanda, Taluka Alibag,  

District Raigad, in the State of Maharashtra.  In RCS No.87 of  

1984 filed by the said Shri Rele before the Civil Judge (Junior  

Division),  Alibag,  the  plaintiff  prayed  for  a  decree  for  

possession  of  the  suit  premises  comprising  a  part  of  the  

house mentioned above on the ground that the defendants  

who happened  to  be  the  legal  heirs  of  one  Shri  Narayan  

Keshav  Ghosalkar,  a  Goldsmith  by  profession,  residing  in  

Bombay  was  allowed  to  occupy  the  suit  premises  as  a  

gratuitous licensee on humanitarian considerations without  

any  return,  compensation,  fee  or  charges  for  such  

occupation.  Upon  the  demise  of  Shri  Narayan  Keshav  

Ghosalkar  in  February  1978,  the  defendants  who stepped  

into his shoes as legal heirs started abusing the confidence  

reposed by the plaintiff in the said Ghosalkar and creating  

nuisance and annoyance to the plaintiff with the result that  

the plaintiff was forced to terminate the licence granted by  

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him in  terms  of  a  notice  assuring  for  delivery  of  vacant  

possession of the premises w.e.f. 1st February, 1984. Upon  

receipt of the notice,  the defendants instead of complying  

with the same sent a reply refusing to vacate the premises  

on  the  false  plea  that  they  were  occupying  the  same as  

tenants since the time of Shri Narayan Keshav Ghosalkar and  

were paying rent although the plaintiff had never issued any  

receipt acknowledging such payment.  In a rejoinder sent to  

the defendants, the plaintiff denied the allegations made by  

the  defendants  and  by  way  of  abundant  caution  claimed  

possession  of  the  suit  premises  even  on  the  grounds  

permitted  under  the  Rent  Control  Act  of  course  without  

prejudice  to  his  contention  that  the  defendants  could  not  

seek protection under the Rent Act.  Time for vacation of the  

premises was also extended by the said rejoinder upto the  

end of April, 1984.   

4. The  defendants  did  not  vacate  the  premises  thereby  

forcing the plaintiff to file a suit for possession against them  

on  the  ground  that  they  were  licensees  occupying  the  

premises  gratuitously  and  out  of  humanitarian  

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considerations.  It was alternatively urged that the plaintiff  

was entitled to vacation of the premises on the ground of  

bona fide personal need, nuisance, annoyance and damage  

allegedly caused to the premise and to the adjoining garden  

land belonging to him.   

5. In the written statement filed by the defendants they  

stuck to their version that the suit property was occupied by  

Shri Narayan Keshav Ghosalkar as a tenant  and upon his  

demise the defendants too were in occupation of the same as  

tenants.

6. On the pleadings of the parties the Trial Court framed  

as many as eight issues and eventually dismissed the suit  

holding  that  the  plaintiff  had  failed  to  prove  that  the  

defendants were gratuitous licensees.  The Trial  Court  also  

held  that  the  defendants  had  proved  that  they  were  

occupying  the  premises  as  tenants  on  a  monthly  rent  of  

Rs.13/-  and that  the  plaintiff  had failed to  prove  that  he  

required the  premises  for  his  bona fide  personal  use  and  

occupation.  Issues  regarding  the  defendants  causing  

nuisance and annoyance to the plaintiff and damage to the  

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property  were  also  held  against  the  plaintiff  by  the  Trial  

Court while declining relief to the plaintiff.

7. Aggrieved by the judgment and decree passed by the  

Trial Court, the plaintiff preferred Civil Appeal No.33 of 1987  

before the Additional District Judge, Alibag who formulated  

six points for determination  and while allowing the appeal  

filed by the plaintiff decreed the suit in favour of his legal  

representatives as the original plaintiff had passed away in  

the  meantime.   The  First  Appellate  Court  held  that  the  

plaintiff had successfully established that the suit premises  

was  occupied  by  Shri  Narayan  Keshav  Ghosalkar on  

gratuitous and humanitarian grounds. It also held that the  

defendants-respondents had failed to prove the existence of  

any  tenancy  in  their  favour  and  that  since  the  license  

granted to the defendants had been validly terminated, the  

legal heirs substituted in place of the original plaintiff were  

entitled to a decree.

8. Second appeal  No.90  of  1992  was then  filed  by  the  

respondent against the judgment of the First Appellate Court  

before the High Court of Judicature at Bombay which was  

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allowed  by  a  Single  Judge  of  that  Court  in  terms  of  its  

judgment impugned in the present appeal. Apart from three  

substantial  questions  of  law  which  the  High  Court  had  

formulated for consideration, it framed a fourth question for  

consideration which was to the following effect:

“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?”   

9. Significantly, the decision rendered by the High Court  

rests entirely on the fourth question extracted above.  The  

High Court has taken the view that while the plaintiff could  

indeed seek relief in the alternative, the contentions raised  

by him were not in the alternative but contradictory, hence,  

could not be allowed to be urged.  The High Court found that  

the  plaintiff’s  case  that  the  defendant  was  a  gratuitous  

licensee was incompatible with the plea that he was a tenant  

and,  therefore,  could be  evicted  under  the  Rent  Act.  The  

High Court observed:

“It is now well settled that a plaintiff may seek   reliefs in the alternative but in fact the pleadings are   mutually  opposite, such pleas cannot be raised by  

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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 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  pleas   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.”

10. We  have  heard  learned  counsel  for  the  parties  at  

length.  The case of  the  plaintiff  appellant  herein  primarily  

was  that  the  original  defendant  and  even  his  legal  

representatives  were  occupying  the  suit  premises  as  

gratuitous licensees  upon termination whereof  the  plaintiff  

was entitled to a decree for possession. While the Trial Court  

found that the defendants were tenants and not licensees as  

alleged by the plaintiff the First Appellate Court had recorded  

a clear finding to the contrary holding that the defendants  

were  indeed  occupying  the  premises  as  licensees  whose  

license was validly terminated by the plaintiff. Whether or not  

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the defendants were licensees as alleged by the plaintiff was  

essentially a question of fact and had to be answered on the  

basis  of  the  evidence  on record  which the  First  Appellate  

Court had reappraised to hold that the defendants were let  

into  the  suit  property  by  the  plaintiff  on  humanitarian  

grounds and as gratuitous licensees.  Absence of any rent  

note evidencing payment of rent  or  any other  material  or  

circumstance to suggest that the relationship between the  

parties  was  that  of  landlord  and  tenant,  abundantly  

supported the conclusion of the First Appellate Court. That  

finding  also  negatived  the  defence  of  the  defendants-

respondents  that  they  were  occupying  the  premises  as  

tenants  which  assertion  of  the  defendant-respondent  was  

held not proved by the First Appellate Court.  There is no  

gainsaid  that  while  considering  the  question  whether  the  

relationship  between  the  parties  was  that  of  licensor  and  

licensee as alleged by the plaintiff or landlord and tenant as  

asserted by the defendants, the First Appellate Court took  

into consideration the totality of the evidence on record with  

a view to finding out as to which of the two versions was  

factually correct. That doubtless was the correct approach to  

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adopt  in  a  suit  based  on  an  alleged  license  where  the  

defendant’s  logical defence was bound to be that he is in  

occupation not as a licensee but as a tenant.    There was, in  

that view, nothing special or novel about the plea raised in  

defence by the defendants-respondents. What is important is  

that  the  First  Appellate  Court  on  facts  found  that  the  

defendants and even their predecessor were licensees in the  

premises which stood validly terminated.   The  High Court  

could not have interfered with that finding of fact leave alone  

on the ground that since the alternative case set up by the  

plaintiff in the plaint was contradictory to the primary case  

pleaded by him, he was entitled to relief even on proof of the  

primary case.

11. That apart the alternative plea of the plaintiff and the  

defence set up by the defendants was no different from each  

other.  The only question that   would fall for determination  

based on   such a   plea   was    whether   the plaintiff had  

made out a case on the grounds permissible under the Rent  

Control Act.  An adjudication on that aspect would become  

necessary only if the plaintiff did not succeed on the primary  

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case set up by him. The alternative plea would be redundant  

if  the  plaintiff’s  case  of  the  defendants  being  gratuitous  

licenses was accepted by the Court.  That is precisely what  

had happened in the instant case.  The First Appellate Court  

accepted  the  plaintiff’s  case  that  defendants  were  in  

occupation as licensees and not as tenants.  The High Court  

has not set aside that finding of fact on its merits.  It may  

have been a different matter if the High Court had done so  

for  valid  reasons  and  then  declined  to  entertain  the  

alternative case set up by the plaintiff based on tenancy. One  

could in that case perhaps argue that the Court had declined  

to  go  beyond  the  principal  contention  to  examine  the  

alternative plea which was contradictory to the principal plea.  

That, however, is not what the High Court has done. Without  

finding fault with the findings recorded by the First Appellate  

Court on the question of a license and its termination the  

High Court has dismissed the suit simply because the plea of  

tenancy  was,  in  its  opinion,  contradictory  to  the  plea  of  

license set up in the earlier part of the plaint.  That was not,  

in our opinion, a proper approach or course to follow.   

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12. The upshot of the above discussion is that the order  

passed by the High Court cannot be sustained.  Having said  

that  we  may deal  with  the  question  whether  the  plea  of  

license and tenancy could be together urged by the plaintiff  

for grant of relief in a suit for possession.   

13. The general rule regarding inconsistent pleas raised in  

the alternative is settled by a long line of decisions rendered  

by this Court.  One of the earliest decisions on the subject  

was  rendered  by  this  Court  in  Srinivas  Ram Kumar  v.  

Mahabir Prasad and Ors.  AIR 1951 SC 177, where this  

Court observed :

“It is true that it was no part of the plaintiff's case   as made in the plaint  that the sum of Rs. 30,000   was  advanced  by  way  of  loan  to  the  defendant   second  party.  But  it  was  certainly  open  to  the   plaintiff  to make an alternative case to that effect   and make a prayer in the alternative for a decree for   money even if  the allegations of the money being   paid in pursuance of a contract of sale could not be   established by evidence. The fact that such a prayer   would have been inconsistent with the other prayer   is not really  material…An Appellant may rely upon   different rights alternatively and there is nothing in   the  Civil  Procedure  Code to  prevent  a  party  from  making two or more inconsistent sets of allegations   and claiming relief thereunder in the alternative.”

14. In Bhagwati Prasad v. Chandramaul AIR 1966 SC  

735 the  plea of  licence was accepted against  the plea of  

tenancy although   the plea of licence was not set up by the  

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appellant. The appellant in that case contended that the land  

and the construction over the land belonged to him and that  

he had let the constructed portion to the respondent on a  

monthly rental basis.  The respondent, however, alleged that  

although  the  land  belonged  to  the  appellant  the  building  

standing over the same was constructed by the respondent  

out  of  his  own money  and,  therefore,  he  was entitled  to  

occupy  the  same  till  his  money  was  recovered  from the  

appellant.  Since the plea of tenancy set up by the appellant  

could not be proved, the Court held that the respondent was  

staying  in  the  house  with  the  leave  and  licence  of  the  

appellant.  What  is  important  is  that  the  Court  clearly  

recognised the principle that if the plea raised by the tenant  

in his written statement was clear and unambiguous in a suit  

where one party alleged the relationship between the two to  

be that of licensor and licensee, while the other alleged the  

existence  of  a  tenancy,  only  two  issues  arose  for  

determination, namely, whether the defendant is tenant of  

the plaintiff or is holding the property as a licensee.  If the  

Court  comes to the conclusion after  the parties lead their  

evidence that the tenancy had not been proved then the only  

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logical inference was that the defendant was in possession of  

the property as a licensee.  This Court said:     

“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  if  it  by  the  owner's  license.  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 argument also   had not been established, it clearly followed that the   defendant was in possession of the suit premises by   the  leave  and  license  of  the   plaintiff…………………………………..

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   license ,subject to the terms specified by the written   statement?.... we are unable to see any error of law   in the approach by the High Court in dealing with it.”

(emphasis supplied)

15. In  G.  Nagamma and  Anr.  v.  Siromenamma and  

Anr. (1996) 2 SCC 25, this Court held that the plaintiff was  

entitled  to  plead  even  inconsistent  pleas  especially  when,  

they are seeking alternative reliefs.

16. To the same effect is the decision of this Court in B.K.  

Narayana Pillai  v.  Parameswaran Pillai  2000(1) SCC  

712. In that case the appellant-defendant wanted to amend  

the written statement by taking a plea that in case he is not  

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held to be a lessee, he was entitled to the benefit of Section  

60(b)  of  the  Indian  Easements  Act,  1882.  Allowing  the  

amendment this Court held that the plea sought to be raised  

was neither inconsistent nor repugnant to the pleas raised in  

defence.  The  Court  further  declared  that  there  was  no  

absolute bar against taking of inconsistent pleas by a party.  

What is impermissible is taking of an inconsistent plea by  

way of an amendment thereby denying the other side the  

benefit of an admission contained in the earlier pleadings.  In  

cases where there was no inconsistency in the facts alleged a  

party is not prohibited from taking alternative pleas available  

in law.  

17. Reference  may also  be  made  to  the  decision  of  this  

Court in  J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and  

Anr.  (2002) 3 SCC 98 where  this  Court  formulated  the  

following tests for determining whether the alternative plea  

raised by the plaintiff was permissible:

“To sum up the gist  of  holding in  Firm Sriniwas  Ram  Kumar's  case:  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   

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alternate  decree  based  thereon  subject  to  four   conditions being satisfied, viz., (i) the statement of   case by 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  interest  of   justice demand the plaintiff not being driven to the   need of filing another suit.”

18. The plaintiff-appellant in the case at hand had set up a  

specific  case  that  the  defendant  as  also  his  legal  

representative  after  his  demise  were  occupying  the  suit  

premises  as  licensees  which  licence  had  been  validly  

terminated.  In  the  reply  to  the  notice  the  case  of  the  

defendants was that were in occupation of the suit premises  

not as licensees but as tenants.  The plaintiff was, therefore,  

entitled on that basis alone to ask for an alternative relief of  

a decree for eviction on the grounds permissible under the  

Rent Control Act.  Such an alternative plea did not fall foul if  

any of the requirements/tests set out in the decision of this  

Court  in  J.J. Lal’s  case (supra).  We say so because the  

written  statement  filed  by  the  defendant  contained  an  

express admission of the fact that the property belonged to  

the  plaintiff  and  that  the  defendants  were  in  occupation  

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thereof  as  tenants.   At  the  trial  Court  also  the  question  

whether the defendants were in occupation as licencee or as  

tenants had been specifically put in issue thereby giving the  

fullest opportunity to  the parties to  prove their  respective  

cases.  There was no question of the defendants being taken  

by surprise by the alternative case pleaded by the plaintiff  

nor could any injustice result from the alternative plea being  

allowed and tried by the Court.  As a matter of fact the trial  

Court had without any demurrer gone into the merits of the  

alternative plea and dismissed the suit on the ground that  

the plaintiff had not been able to prove a case for eviction of  

the defendants.  There was thus not only a proper trial on all  

those grounds urged by the plaintiff but also a judgment in  

favour of the defendant respondents.  Last but not the least  

even if the alternative plea had not been allowed to be raised  

in the suit filed by the appellant he would have been certainly  

entitled to raise that plea and seek eviction in a separate suit  

filed on the  very  same grounds.  The  only difference  may  

have been that the suit may have then been filed before the  

Court  of  Small  Causes  but  no  error  of  jurisdiction  was  

committed in the instant case as the finding recorded by the  

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Civil Court was that the defendants were licensees and not  

tenants.  Superadded to all these factors is the fact that the  

appellate  Court  had granted relief  to  the  appellant  not  in  

relation  to  the  alternative  plea  raised  by him but  on  the  

principal  case  set  up  by  the  plaintiff.   If  the  plaintiff  

succeeded on the principal case set up by him whether or not  

the alternative plea was contradictory or inconsistent or even  

destructive of the original plea paled into insignificance.   

19. In  the  result,  this  appeal  succeeds  and  is,  hereby  

allowed, the impugned judgment passed by the High Court is  

set  aside  and  that  passed  by  the  first  appellate  Court  is  

restored.  The respondents are granted time till 30th April  

2014  to  vacate  the  premises  subject  to  their  filing  

undertakings  on  usual  terms  before  this  Court  within  six  

weeks from today.  In case the undertakings are not filed, as  

directed, the decree passed in favour of the appellant shall  

become executable forthwith.  No costs.      

.……………….……….…..…J.         (T.S. THAKUR)

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     ……..…………………..…..…J.              (VIKRAMAJIT SEN)

New Delhi January 3, 2014

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