Page 1 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

16

th

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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Page 2 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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Page 3 him in terms of a notice assuring for delivery of vacant

possession of the premises w.e.f. 1

st

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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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

9

Page 10 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.

10

Page 11 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

11

Page 12 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

12

Page 13 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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Page 14 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

14

Page 15 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

15

Page 16 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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Page 17 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 30

th

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)

17

Page 18 ……..…………………..…..…J.

(VIKRAMAJIT SEN)

New Delhi

January 3, 2014

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