# CHANDER KALI BAI & ORS v. JAGDISH SINGH THAKUR

- **Citation:** [1978] 1 S.C.R. 625
- **Court:** Supreme Court of India
- **Decided:** 1977-10-06
- **Bench:** N. L. Untwalia, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chander-kali-bai-ors-v-jagdish-singh-thakur-7303
- **Pages:** 7

## Headnote

625
Madhya Pradesh Accommodation Control A ct 1961. ss. 2 (I),
12 (I) (f),
13(1)-A decree for damages can be awarded not from the date of termination
of the contractual tenancy but only from the date when an evicrion
decree
is
passed.
iVew plea-A plea of defence not taken at trial stage cannot be pennittf·d to
be takell at appellate stage.
JVords and phrases, "his business" and "of his own
in
his
occupation"
occurring in s. 12(1)(/) of tl1e Madhya Pradesh Accornmodation Control Act,
1961, meaning of.
A
B
c
A shop where Bhojnala)'a. wci.s being run by the
appellants-tenants
was
demised to their predecessors-in-interest for the said purpose by the father of
plaintiff-respondent No. 1 in the year 1951 on a monthly rent of Rs. 50/-. · The
father of the plaintiff-respondent No. 1 was running a sweetmeat shop in a
rented premises, the rent of which was Rs. 225 /- per mensem. The plaintiff's
D
father died in 1970. Some time later the original tenant also died. He
had
paid_ rent up to September, 1972. The plaintiff served a notice on the defendants terminating the contractual tenancy with effect from 31-12-1972 and filed
a suit on 8-3-1973 for eviction on the ground of bona fide
necessity of the
plaintiff, for arrears of rent amounting to Rs. 150/- for October, November and
December 1972 and damages for the months of January and February 1973 at
Rs. 225/- per mensem as also future damages till the delivery of the possession.
The trial court dismissed the suit holding that the plaintiff did not require the
sweet-shop bona fide for his personal necessity.
On appeal by
the plaintiff,
E
the first appellate court by its judgment dated 11-8-75, taking a contrary view,
decreed the suit for eviction, arrears of rent and also for past and future damages
at Rs. 125/- per month to be payable on and from 1-1-1973 until delivery of the
vacant possession to the plaintiff.
The High Court in second appeal affirmed
the decree.
Allowing the appeal by special leave in part, the Court,
HELD : ( 1) Where a claim has never been made in the defence presented,
F
no amount of evidence can be looked into upon a plea which was never put
foiward.
Il it could be so even at the trial stage, undoubtedly such a new
question of fact could not be entertained at an appellate stage .
In this case, neither any issue w~ struck nor was any evidence adduced by
the parties on the question. The case proceeded to trial on the admitted footing that the business which the plaintiff wanted to shift to the suit shop was
his business.
In such a siutation it was not open to the appellants to take a
stand at a very late stage of the litigation that the sweetmeat shop was the
G
business ·of the joint family of the plaintiff and, therefore; not the plaintiff's
busineRs to come wi:hin the meaning of clause ( f) of sub-s 1 of s. 12 of the
Madhya Pradesh Accommodation Control Act, 1961.
[627H, 628A-D]
Siddik Malwmed Shah v. Mt. Saran and Ors. 1930 PC 57(1); Bhagat Singh
& Ors. v. Jaswant Singh A.I.R. 1966 SC 1861 and Bachan Singh v. Dhian Dass
& Ors. AIR 1974 SC 708, applied.
(2) A tenanted shop in mere occupation of the landlord filing a suit for evicH
tion against his tenant was sufficient to deny him a decree on the ground of
clause (h) of s. 4 of the Madhya Pradesh Accommodation Control Act 1955
where the expression used was that the landlord "is not in occupaiion of any
other accommodation in the city or town for that purpose". But, under the
A
B
c
D
E
F
G
H
626
SUPREME COURT REPORTS
[1978] 1 s.c.R.
1961 Act, mere occupation of another premises is not sufficient in view of the
clear departure made by using the phraseology in the second part of cl. (f) of
s. 12(1), "the landlord has no
other
reasonably
suitable
non-residential
accommodation of his own in his occupation in the city or town concerned".
The premises must be his own meaning thereby that they must be owned by or
belong to the landlord and he must be in occupation of the same. In the
instant case, the tenanted shop in occu

## Text

-
..
CHANDER KALI BAI & ORS.
v.
JAGDISH SINGH THAKUR
October 6, 1977
[N. L. UNTWALIA AND JASWANT SINGH, JJ.]
625
Madhya Pradesh Accommodation Control A ct 1961. ss. 2 (I),
12 (I) (f),
13(1)-A decree for damages can be awarded not from the date of termination
of the contractual tenancy but only from the date when an evicrion
decree
is
passed.
iVew plea-A plea of defence not taken at trial stage cannot be pennittf·d to
be takell at appellate stage.
JVords and phrases, "his business" and "of his own
in
his
occupation"
occurring in s. 12(1)(/) of tl1e Madhya Pradesh Accornmodation Control Act,
1961, meaning of.
A
B
c
A shop where Bhojnala)'a. wci.s being run by the
appellants-tenants
was
demised to their predecessors-in-interest for the said purpose by the father of
plaintiff-respondent No. 1 in the year 1951 on a monthly rent of Rs. 50/-. · The
father of the plaintiff-respondent No. 1 was running a sweetmeat shop in a
rented premises, the rent of which was Rs. 225 /- per mensem. The plaintiff's
D
father died in 1970. Some time later the original tenant also died. He
had
paid_ rent up to September, 1972. The plaintiff served a notice on the defendants terminating the contractual tenancy with effect from 31-12-1972 and filed
a suit on 8-3-1973 for eviction on the ground of bona fide
necessity of the
plaintiff, for arrears of rent amounting to Rs. 150/- for October, November and
December 1972 and damages for the months of January and February 1973 at
Rs. 225/- per mensem as also future damages till the delivery of the possession.
The trial court dismissed the suit holding that the plaintiff did not require the
sweet-shop bona fide for his personal necessity.
On appeal by
the plaintiff,
E
the first appellate court by its judgment dated 11-8-75, taking a contrary view,
decreed the suit for eviction, arrears of rent and also for past and future damages
at Rs. 125/- per month to be payable on and from 1-1-1973 until delivery of the
vacant possession to the plaintiff.
The High Court in second appeal affirmed
the decree.
Allowing the appeal by special leave in part, the Court,
HELD : ( 1) Where a claim has never been made in the defence presented,
F
no amount of evidence can be looked into upon a plea which was never put
foiward.
Il it could be so even at the trial stage, undoubtedly such a new
question of fact could not be entertained at an appellate stage .
In this case, neither any issue w~ struck nor was any evidence adduced by
the parties on the question. The case proceeded to trial on the admitted footing that the business which the plaintiff wanted to shift to the suit shop was
his business.
In such a siutation it was not open to the appellants to take a
stand at a very late stage of the litigation that the sweetmeat shop was the
G
business ·of the joint family of the plaintiff and, therefore; not the plaintiff's
busineRs to come wi:hin the meaning of clause ( f) of sub-s 1 of s. 12 of the
Madhya Pradesh Accommodation Control Act, 1961.
[627H, 628A-D]
Siddik Malwmed Shah v. Mt. Saran and Ors. 1930 PC 57(1); Bhagat Singh
& Ors. v. Jaswant Singh A.I.R. 1966 SC 1861 and Bachan Singh v. Dhian Dass
& Ors. AIR 1974 SC 708, applied.
(2) A tenanted shop in mere occupation of the landlord filing a suit for evicH
tion against his tenant was sufficient to deny him a decree on the ground of
clause (h) of s. 4 of the Madhya Pradesh Accommodation Control Act 1955
where the expression used was that the landlord "is not in occupaiion of any
other accommodation in the city or town for that purpose". But, under the
A
B
c
D
E
F
G
H
626
SUPREME COURT REPORTS
[1978] 1 s.c.R.
1961 Act, mere occupation of another premises is not sufficient in view of the
clear departure made by using the phraseology in the second part of cl. (f) of
s. 12(1), "the landlord has no
other
reasonably
suitable
non-residential
accommodation of his own in his occupation in the city or town concerned".
The premises must be his own meaning thereby that they must be owned by or
belong to the landlord and he must be in occupation of the same. In the
instant case, the tenanted shop in occupation of the plaintiff was not sufficient
to deny him a decree for eviction against his tenant u/s. 12(1) (f) of the Act.
[628E-F]
(3) As per the widened definition of "tenant" ins. 2(1) of the Madhya
Pradesh Accommodation Control Act, 1961, a tenant even after the termination
of his contractual tenancy does not become an unauthorised occupant of the
accommodation bu_t remains a statutory tenant.
A person continuing in possession of the accommodation even after the termination of his
contractu:"ll
tenancy is a tenant within the meaning of the Act and on such termination his
possession does not become wrongful until and unless a decree for eviction is
made.
If he continues to be in possession even after the passing of the decree,
he dues so as a wrongful occupant of the accommodation. [629 A-D]
1Ja1nadifal and others v. Parashram
and others [1976] Supp.
SCR 645,
referred to.
( 4) If a suit is filed on the ground of non-payment of rent after termination of the contractual tenancy, the tenant still continues to be tenant liable to
pay rent not only for the past period, but in future also. In absence of decree
of evicion the person in occupation of -the accommodation continues to be
a
tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the c9ntractual tenancy.
In the instant case (i) the defendants remained in occupation of the accomm<Xlation on and from 1-1-1973 as a statutory tenant under the
Act Their
occupation was not unauthorised or wrongful until a decree for eviction was
passed by the first appellate court on 11-8-1975. Their occupation became
unauthorised or wrongful only from that date. They are liable to pay damages
or mesne profits· at Rs. 125/- per mensem from 11-8-1975 only until the delivery
of the vacant possession of the accommodation. They are not liable to pay
any damages or mesne profits for the period commencing from 1-1-1973 and
ending 10-8-1975. [629 E-G, 630 G-H, 631 A]
Kikabhai Abdul Hussain v. Kamlakar and Ors. [1974] M.P.
Law Journal
485, over-ruled.
Ganga Dutt Murarka v. Kartik Chandra Das &: Ors. [1961] (3) OCR 813,
distinguished.
CIVIL APPELLATE JURISDSCTION : Civil Appeal No. 110 of 1976.
Appeal by Special Leave from the Judgment and Order dated
28-11-75 of the Madhya Pradesh High Court in Second Appeal No.
495 of 1975.
(Mrs.) Leila Seth, A. T. Patra and Praveen Kumar for the Appellants.
M. V. Goswami for Respondent No. 1.
G. S. Chatterjee for Respondent No. 2.
The Judgment of the Court was delivered by
UNTWALIA, J.-In this appeal by special leave the appellants and
respondent no. 2 were the defendants in a suit filed by plaintiff-respondent no. 1 for eviction and other reliefs in respect of the suit premises.
The suit was dismissed by the Trial Court but decreed by the
-
'
~-
CHANDER KALI v. J. s. THAKUR (Untwalia, J.)
627
First Appellate Court. The second appeal filed by the defendant in
A
the High Court of Madhya Pradesh wa·s dismissed.
The· demised property is a shop situated at a place in the District
of Hoshangabad. It was let out by the father of the plaintiff to the
husband of defendant no. 1 and the father of the other defendants in
the year 1951 at a monthly rent of Rs. 50/-. A Bhojnalaya was being
run in the shop by the tenant.
The plaintiff's father was running a
sweetmeat shop in a rented premise the rent of which was Rs. 225 /-
per month.
The plaintiff's father died in 1970.
Sometime later the
original tenant, the predecessor-in-interest of the defendants, also died.
He bad paid rent upto September, 1972.
After the death of the
original tenant, the defendants became the tenants of the suit shop.
The plaintiff served a notice on the defendants terminating the contractual tenancy w.e.f. 31-12-1972.
The suit for
eviction was filed on
8-3-1973 claiming thereiu a decree for evictiou chiefly on the ground of
bona-fide personal necessity of the plaintiff, for arrears of rent amounting to Rs. 150/- for October, November and December, 1972 and
damages for the months of January and February, 1973 @ Rs. 225/-
per month as also future damages till the delivery of possession.
The Trial Court dismissed the suit holding that the plaintiff did
not require the suit shop bona-fide for his personal necessity.
On
appeal by the plaintiff, the First Appellate Court by its judgment dated
11-8-1975 took a contrary view and held in favour of the plaintiff.
It decreed the suit for eviction, arrears of rent and also for past and
future damages @ Rs. 125/- per month damages to be payable on and
from 1-1-1973 until delivery of the vacant possession to the plaintiff.
The High Court has affirmed this decree.
Mrs. Leila Seth, learned counsel for the appellants advanced a very
able and succinct argument and urged only the following three points :
(I) The business for which the accommodation was required
by the plaintiff was not "his business" within the meaning
of clause (f) of sub-section (I) of Section 12 of The
Madhya Pradesh Accommodation Control Act, 1961 hereinafter referred to as the Act.
(2) That the rented shop in which the bu"siness of sweetmeat
and Namkin was carried on should have been held to be
an accommodation "of his own in his occupation" within
the meaning of the second part of the clause (f).
B
c
D
E
F
( 3) That no decree for damages could be awarded from the
G
date of termination of the contractual tenancy.
It could
be awarded only from the date when an eviction decree
was passed.
In our judgment the first two points of the appellants have to be
rejected but the third must succeed.
The plaintiff had clearly pleaded in paragraph 8 of his plaint that
the sweetmeat shop which he was running in the rented premises was
his business and be wanted to shift it to the accommodation in question.
The defendants did not deny the statement made in paragraph 8 of
H
A
B
c
i)
628
SUPREME COURT REPORTS
[1978] l s.c.R.
the plaint-rather in paragraph 6 of their written statement they admitted them to be correct.
In such a situation it was not open to them
to take a stand at a very late stage of the litigation that the sweetmeat
shop was the business of the joint family of the plaintiff-the karta of
which was his father and on his death it was the business not of the
plaintiff alone but of his entire joint family.
The High Court bas
rightly rejected this point on this ground.
In Siddik Mahomed Shah
v. Mt. Saran and others(') it has been pointed out that where a claim
has never been made in the defence presented n9 amount of evidence
can be looked into upon a plea which was never put forward. If it
could be so even at the trial stage, undoubtedly, such a new question
of fact could not be entertained at any appellate stage.
This decision
has been followed by this Court in Bhagat Singh and others v. Jaswant
Singh(').
To the same effect is the view expressed in another decision
of this Court in Bachan Singh v. Dhian Dass and others( 3 ). Hegde, J
pointed out in paragraph 6 of the judgment that a contention involving
determination of questions of fact ought not have been allowed to be
raised for the first time in the second appeal in the High Court.
In
this case we may add further that neither any issue was struck nor was
any evidence adduced by the parties on this question. The case proceeded to trial on the admitted footing that the busines·s which the
plaintiff wanted to 'shift to the suit- shop was his business.
Apropos the second point it would be useful to point out that the
Act replaced an earliert Act of 1955 entitled as The Madhya Pradesh
Accommodation Control Act, 1955. In a similar provision as contained in Section 4(h) of the 1955 Act, the expression used was that
E
the landlord "is not in occupation of any other accommodation in the
city or town for that purpose".
There is a clear departure in the 1961
Act where the phraseology is that the landlord "has no other reasonably suitable non-residential accommodation of bis own in bis occupation in the city or town concerned", in the second part of clause (f)
of Section 12(1). A tenanted shop in mere occupation of the landlord filing a suit for eviction against his tenant was ·sufficient to deny
F
him a decree on the ground of clause (h) of Section 4 of the 1955 Act.
G
H
But under the 1961 Act, mere occupation of another premises is not
sufficient.
The premises must be his own, meaning thereby that they
must be owned by or belong to the landlord and he must be in occupation of the same. It is, therefore, plain that the tenanted shop in
occupation of the plaintiff was not ·sufficient to deny him a decree for
eviction against his tenant under section 12 (I) ( f) of the Act.
For appreciation of the third point urged for the appellant it would
be again useful to refer to a few corresponding provisions of the two
Acts.
In the 1955 Act, tenant was defined in clause (f) of Section 3
to mean "a person by whom rent is payable or but for a contract express or implied would be payable for any accommodation and includes
any person occupying the accommodation as a sub-tenant". In the
(I) [1930]Privy Council, 57 (I)
(3) A.I.R. 1974 S.C. 708.
(2) A.LR. 1966 SC. 1861.
•
I
.,,
CHANDER KALI v. J. s. THAKUR (Untwalia, !.)
629
1961 Act, however, the definition of tenant has been widened and . A
Section 2(i) .reads \hus :
" "tenant" means a person by whom or on whose account or behalf the rent of any accommodation is, or, but,
for a contract express or implied, would be payable for any
accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing
in possession after the termination of his tenancy whether
before or after the commencement of this Act; but shall not
include any person against whom any order or decree for
eviction has been made."
On a plain reading of the definition aforesaid it is clear that a tenan~
even after the termination of his contractual tenancy does not become
an unauthorised occupant of the accommodation but remains a tenant.
It has been pointed out by this Court in Damadilal and others v.
Parashram and others(') that such a tenant is conveniently called a
statutory tenant.
Whether the expression aforesaid borrowed from
the English Law is quite apposite or not, but, what is certain is that
a person continuing in possession of the accommodation even after the
termination of his contractual tenancy is a tenant within the meaning
of the Act and on such termination his posse·ssion does not become
wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does
so as a wrongful occupant of the accommodation.
Mrs. Seth in support of her argument rightly pre·ssed into service a
few other provisions of the Act.
Section 13 (1) giving protection
against eviction on the ground of default in payment of rent provides
therein that even after the institution of the suit if he clears off the
amount of rent due within a period specified in the section and thereafter "continue to deposit or pay, month by month, by the 15th of
each succeeding month a sum equivalent to the rent at that rate" calculated at the rate of rent at which he was paying earlier, no decree
for eviction can be passed.
The conclusion is inevitable, therefore,
that if a suit is filed· on the ground of non-payment of rent after termination of the contractual tenancy, the
tenant still continues to be a
tenant liable to pay rent not only for the past period but in future also.
In absence of a decree of eviction the person in occupation of the
accommodation continues to be a tenant and is not liable to pay any
damages as his occupation is not unauthorised or wrongful even after
the termination of the contractual tenancy.
In Damadi/al's case
(supra). Gupta, J delivering the _judgment of this Court bas said at
page 653 with reference to the definition of tenant in ·section 2(1) of
the Act:-
"The definition makes a person continuing in possession
after the determination of his tenancy a tenant unless a deB
c
D
E
F
G
cree or order for eviction has been made against him, thus
H
putting him on par with a person whose contractual tenancy
(I) [1976] Suppl. S.C.R. 645.
A
B
c
D
E
F
G
H
630
SUPREME COURT REP OR TS
[1978] 1 s.c.R.
still subsists.
The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision
of the Act conveyed a contrary intention.
That under this
Act such a tenant retains an interest in the premises, and
not merely a personal right of occupation, will also appear
from section 14 which contains
provisions restricting the
tenant's power of subletting."
In Kikabhai Abdul Hussain v. Kamlakar and others(') a Bench
of the Madhya Pradesh High Court seems to have opined even with
reference to the 1961 Act that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing
of the decree for eviction he becomes a wrongful occupant of the accommodation since the date of termination. It seems a theory akin to
the theory of "relation back" has been applied in the sense that if no
decree for eviction is passed then the person is not irr unlawful occupation but on the passing of such a decree his possession becomes unlawful not from the date of the decree but such a decree makes his
occupation unlawful from the date of the termination of the contractual
tenancy.
Whatever could be said with reference to the provisions of
1955 Act it is clear to us that the law so enunciated by the High Court
with reference to 1961 Act is not correct.
Mr. Goswami, appearing for the plaintiff respondent relied upon
the decision of this Court in Ganga Dutt Murarka v. Karlik Chandra
Das and others('): In our opinion the sa'd decision is of no help to
the respondent.
The question for determination there was a different
one.
With reference to the provisions of the West Bengal Premises
Rent Control Act the argument advanced before this Court was that if
after the determination of the tenancy by efflux of time or by a notice
to quit the tenant continued in possession of the premises and the
laudlord accepted rent from him because no decree for eviction could
be made in view of the subsequent Control Acts it was tantamount to r
holding over within the meaning of Section 116 of the Transfer of
Property Act.
This argument was repelled.
Whether a new contractual tenancy would come into existence by acceptance of rent by the
landlord in such a situation is a different matter.
But this case does
not lay down that the occupation of the premises by the tenant whose
tenancy has been terminated by efflux of time or by notice to quit becomes unauthorised or wrongful.
For the reason stated above it is manifest that the defendants re- -_.
mained in occupation of the accommodation on and from 1-1-1973
as a tenant, conveniently to be called statutory tenant, under the Act.
Their occupation wa·s not unauthorised or wrongful until a decree for
eviction was passed by the First Appellate Court on 11-8-7 5.
Their
occupation became unauthorised or wrongful
only from
that date. •
They are not, therefore, liable to pay any damages or mesne profits for
(1) [1974] Madhya Pradesh Law Journal, 485.
(2) [1961] 3 S.C.R. 814.
CHANDER KALI v. J, s. THAKUR (Untwalia, J.)
63\
the period commencing from 1-1-1973 and ending on 10-8-1975.
Decree for damages either in respect of the two months prior to the institution of the suit or for the subsequent period must therefore be set
f
aside.
The defendant-appellants will be liable to pay damages or
mesne profits @ Rs. 125/ per month (the rate of damages could not
be and was not challenged before us) from 11-8-1975 only, until the
delivery of the vacant possession of the accommodation.
In the result the appeal is allowed in part only to the extent stated
above.
In the circumstances, we shall make no order as to costs in
this Court.
S.R.
Appeal allowed in part.
A
B