JUDGMENT
1. This is a plaintiff’s regular second appeal against the concurrent judgment and decrees of the Courts below, where by his suit for ejectment of the defendant-respondent from a shop situated in Amritsar Town and for recovery of Rupees 2,135/- on account of arrears of rent and damages for use and occupation thereof, was dismissed with costs.
2. The plaintiff Amar Nath filed this suit on the ground that he was owner of a shop forming part of building No. 952-53/1-9 situated in a business locality of Amritsar. He alleged that the said shop was rented out by him to the defendant on 24-2-1965 at a monthly rent of Rs. 115/- for a period of 11 months. He claimed that the property being newly constructed was exempt from the provisions of the East Punjab Urban Rent Restriction Act, 1948. The plaintiff claimed that the defendant was in arrears of rent from 24-4-1967 to 23-4-1968 (a period of one year) at the rate of Rs. 115/- per mensem, and another sum of Rs. 805/- at the same rate as damages for use and occupation of the said shop for the period from 24-4-1968 to 23-11-1968 (a period of seven months). He claimed that he had terminated the tenancy, vide notice dated 2-4-1968 but the said amount had not been paid to him despite requests and the notice.
3. The defendant, on the other hand, denied that the building was exempt from the provisions of the rent control legislation. He pleaded a counter version. According to him, he had initially taken on rent on 24-2-1965 a shop from the plaintiff at the monthly rate of Rs. 115/-, which he had vacated on 30-4-1967 and for the succeeding period of 7-8 days, the rent due was forgone by the plaintiff due to a private arrangement arrived at between the parties, where under he vacated that shop and was given possession of another shop in the same building bearing shop No. 4 at a monthly rent of Rs. 80/-. he conceded that rent at the aforesaid rate of Rs. 80/- per mensem was due from him for the shop which was presently in his possession with effect from 1-5-1967, but nothing was due from him on account of the shop the possession of which he had abandoned. He claimed that he had made several requests to the plaintiff to accept rent at the of Rs. 80/- per mensem for the shop which was in his possession but the plaintiff had ignored them.
4. Significantly, the written statement of the defendant-respondent attracted a replication from the plaintiff. Instead of diverting his claim against the shop which was in possession of the defendant on terms as alleged in the return, the plaintiff denied all the allegation made in the written statement, and in his statement before issues, rather reiterated that the suit was with regard to the shop which he had only once given on tenancy to the defendant and that too at the rate of Rs. 115/- per mensem. In other words, the chance of an alternative plea was not availed of and the plaintiff stuck to his guns as pointed in the plaint and did not turn the guns towards the defendant as raised by the latter in the written statement.
5. The trial Court framed the following issues :–
(1) Whether the property in dispute is exempt from the provisions of Act III of 1949 ?
(2) Whether rent of the premises is already paid as forgone by the plaintiff, as alleged in paragraph No. 2, on merits of the written statement ?
(3) Whether possession of the premises in dispute was delivered to the plaintiff as alleged in para No. 2, on merits of the written statement? If so, what?
(4) Whether the notice terminating the tenancy served on the defendant is not valid? If so, what is its effect?
(5) Whether the plaintiff is entitled to possession of the premises in dispute?
(6) To what amount of arrears of rent, if any, is the plaintiff entitled?
(7) Relief.
6. The trial Court, in a painstakingly long and elaborate judgment, dismissed the suit with costs. It took into account the inspection note prepared by it when a visit was paid to the premises in question. The lower appellate Court agreed with the trial Court and dismissed the appeal of the plaintiff necessitating him to approach this Court in second appeal.
7. The crucial issue for the plaintiff in the instant litigation rested on the outcome of issue No. 3 and what was the premises in dispute. According to the plaintiff-appellant, the premises in dispute were the premises which were presently in occupation of the defendant and those were in tenancy with the latter by virtue of rent-note Exhibit P-7 and described in plan Exhibit P-8. According to the defendant, the rent-note Ext. P-7 pertained to another shop marked as ‘Y’ in the plaintiff’s plan Exhibit PW4/1 wherein the other shop marked as “X/1” was presently in possession of the defendant. According to the plaintiff, the rent was Rs.115/- per mensem but, according to the defendant, the rent of Rs.115/- per mensem pertained to shop marked as ‘Y’, but presently he was to pay Rs.80/- lper mensem for the shop marked as “X/1” presently in his possession. Thus, the intrinsic question under issue No. 3 was: “What is the premises in dispute and whether it was in possession of the defendant?” The trial Court took into consideration all the oral evidence, the documentary evidence, the inspection note, the inferences drawn therefrom as also the demeanour of the plaintiff and his witnesses and came to the following conclusions under issue No. 3:–
“In view of the above discussion, therefore, I find absolutely no difficulty in coming to the conclusion that originally the shop marked ‘Y’ was rented out to the defendant by the plaintiff by means of the rent-note Exhibit P-7 at a monthly rent of Rs.115/- and it may not really be incorrect that by reason of a mutual agreement between them, he was shifted to shop No. 4, now marked as X-1 in the plain Exhibits PW4/1, on the condition of the plaintiff forgoing about a week’s rent for the first shop and also on the condition of his reducing the existing monthly rent of Rs.115/- to Rs.80/-. In other words, it seems quite clear to me that the defendant is not occupying the shop originally rented out to him by the plaintiff and he came to occupy the shop in dispute, marked X-1, subsequently, by reason of some mutual agreement between the parties.”
The trial Court also held :–
“…………………… the fact remains that he is not occupying the shop originally rented out to him, and this also is undisputed that the present suit instituted by the plaintiff relates to the same shop which he had originally rented out to the defendant. Since I have already held above that the shop now in the occupation of the defendant is not the one originally let out to him, I am not concerned to deal with the rights of the parties in respect of that shop, for the suit does not relate to that shop at all. In these circumstances, therefore, it may be said that the defendant occupies the shop in dispute by reason of a mutual agreement with the plaintiff and is not in possession of the shop originally rented out to him by virtue of the rent note Exhibit P-7, regarding which the present suit is being filed by the plaintiff. The issue is thus decided accordingly.”
8. On the aforesaid findings, on issues Nos. 1 and 5 with regard to the exemption of the rent control legislation, the trial Court held that though there was no bar to pass a decree in favour of the landlord because of the exemption period, yet no decree could be passed in his favour, for the suit related to a property which had been vacated, as already discussed. He, thus, decided both the issues against the plaintiff and in favour of the defendant. As a sequel to the decision of the afore-referred to three issues, the trial Court decided issue No. 2 also against the plaintiff holding that the rent for 7-8 days from 23-4-1967 to 30-4-1967 was forgone by the plaintiff and, in any case, since the suit related to another shop, the arrears were not claimable. Under issue No. 4, it was held that the notice, marked as ‘X’1’, served on the defendant by the plaintiff was invalid since the shop referred to therein stood already vacated by the defendant. In accord with the finding on issue No. 3, the finding on issue No. 6 also went against the plaintiff because the arrears of rent or damages were being claimed of the shop which was once tenanted to the defendant and, as per finding of the trial Judge, it pertained to the premises which stood vacated. Findings on all these issues were affirmed by the lower appellate Court on appeal as it was of the view that the evidence for reappraisal before it was cold-print whereas the trial Court had the advantage of observing the demeanour of the plaintiff when he appeared before it in evidence. The trial Court had specifically observed that the plaintiff as also his witness Gian Parkash Gupta PW 6 had intentionally made false statements on oath before him and it had even initiated proceedings of perjury against them.
9. The findings of fact arrived at by the Courts below are unassailable in second appeal. More so, when it require reappraisal of the oral and documentary evidence as also the inferences to be drawn therefrom. It is not open to me to entertain question of fact in second appeal. No authority for the proposition is needed, Section 100 of the Code of Civil Procedure itself is a pointer.
10. However, the learned counsel for the appellant has contended that on the case as pleaded by the defendant in his written statement, the plaintiff should have been granted relief on the pleaded case of the defendant. Reliance is placed on Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177. The Supreme Court held therein as under (at pp.179, 180) :–
“A plaintiff 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. 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 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.”
11. On the strength of the aforesaid passage, the learned counsel for the appellant claims that, since the defendant admitted himself to be a tenant of the plaintiff of the shop presently in possession, may be for a rental of Rs.80/- per mensem, but since the suit was filed by the plaintiff within the statutory exempted period, a decree should be passed qua that property against the defendant, all the more, when his claim was based on premises depicted in plan Exhibit P-8 which pertains to none other than the premises in possession of the defendant. It was also highlighted that in plan Exhibit P-8, the dimensions of the property, as shown therein, were 8 feet of width in the front and 6 feet of width at the back. Both the Courts below have earmarked these premises as shop “X/1” on the composite plan Ext. PW4/1 and have even taken note of the dimensions of the said premises not tallying with rent-note Exhibit P-7 which pertains to a shop having width of 8 feet uniformly and, hence, deducingly applicable to shop marked ‘Y’ on the said plan. The learned counsel for the appellant contended that the identity of the property should be taken to be the one as pleaded by the defendant and on that score he must get a decree for which there was no bar, since the suit was filed within time. Reliance was also placed by him on firm Amar Nath Basheshar Dass v. Tek Chand, AIR 1972 SC 1548, and the law reiterated by this Court in Ram Parkash v. Smt. Surinder Sharma, (1981) 2 Rent LR 314 : (AIR 1981 Punj and Har 297), clarifying the apparent conflict of the aforesaid decision of the Supreme Court and the later decision in Mani Subrat Jain v. Raja Ram Vohra, (1980) 1 SCC 1 : (AIR 1980 SC 299).
12. So far as the point that a decree can be granted if a suit has been filed within the exemption period, there can be no doubt about it. There can also be no doubt that the instant suit was filed within the period of exemption and logically a decree can be passed in favour of the plaintiff without any difficulty. But, still the question remains whether the plaintiff is entitled to the decree and pertaining to what property. Now, it is claimed that the decree should be passed qua and property which the defendant admits to be presently in his tenancy. To my mind, such plea is not open to the plaintiff-appellant, especially when in the replication and the statement before issues he has struck on to the claim made in the plaint. It is well understood that replication is a part of pleadings, and in that the plaintiff could have, while insisting on the facts alleged in the plaint, taken an alternative plea on the strength of the written statement. But, he missed the opportunity and rather spurned it. This gave occasion to the trial Court to take a positive view that it was not possible for him to determine the rights of the parties in the matter of tenancy or otherwise in respect to the shop at present in occupation of the defendant. This view was endorsed by the lower appellate Court leaving the controversy at that level. In other words, tenancy as pleaded by the defendant was neither admitted by the plaintiff nor was it otherwise proved with regard to the premises presently in occupation of the defendant. That finding not being there, there is nothing to go on further so as to grant any relief to the plaintiff. In the Supreme Court authority, Firm Sriniwas Ram Kumar’s case (AIR 1951 SC 177) (supra), there was a positive finding by the Courts below that the defendants, who had pleaded receipt on money from the plaintiff as loan and not in any other manner as suggested by the plaintiff, had succeeded in proving that the said sum was by way of a loan and not part payment of the consideration money. It is in those circumstances, on facts found, that the suit was partially decreed inasmuch as the suit was dismissed for the claim of specific performance but the plaintiff was held entitled to a money decree for the sum of Rs.30,000/- against the defendants taken by them as loan. Now, here in the instant case, there is no such finding that a tenancy stood established between the plaintiff and the defendant on the shop which was presently in possession of the defendant. All what was held was that the shop, named by the plaintiff on tenancy with the defendant, was not in possession of the defendant any more, but he was in possession of another shop by way of a private arrangement. On these found facts, which cannot be improved upon in second appeal, the plaintiff cannot be allowed to succeed on the defendant’s case. As a corollary to the aforesaid statement, no claim for money with regard to rent or for use and occupation and on what rate can also be entertained for the plaintiff against the defendant.
13. The upshot of the above discussion leaves me to conclude that there is neither any scope to upset or modify the concurrent views taken by the Courts below nor is there any scope for improvement of the case of the appellant any further on the defence plea by the defendant. Resultantly, this appeal fails and is hereby dismissed but, in the circumstances of the case, there will be no order as to costs in this Court.
14. Appeal dismissed.
