Holding

The agreement was a tenancy, not a licence, and the High Court correctly invoked Section 103 CPC; consequently the appeal is dismissed.

Summary

The appellant, having purchased a property bequeathed to a widow with a life interest, filed a title suit for eviction against M/s Nanee Printers, alleging that their 11‑year agreement dated 5 July 1976 was a revocable licence. The trial court held it a licence and dismissed the suit; the first appellate court reversed, granting eviction but did not decide the licence‑vs‑tenancy issue. The Calcutta High Court, on second appeal, examined the agreement’s terms, exclusive possession, rent receipts, tax payments and the consent of the son, and concluded that the agreement was a tenancy in disguise, requiring notice under Section 13(6)(g) of the West Bengal Premises Tenancy Act and grounds under Section 13(1) for eviction. It also invoked Section 103 CPC as the core issue was a substantial question of law not previously adjudicated. The Supreme Court affirmed the High Court’s findings, holding the agreement to be a tenancy, confirming the High Court’s jurisdiction, and dismissed the appeal, rendering the title suit untenable.

Issues considered

Whether the agreement dated 5 July 1976 constitutes a licence or a tenancy under the West Bengal Premises Tenancy Act, 1956.
Whether the Calcutta High Court was justified in entertaining the second appeal under Section 103 of the Code of Civil Procedure, 1908.
Whether notice under Section 13(6)(g) and grounds under Section 13(1) of the West Bengal Premises Tenancy Act were required for eviction.
Whether the appellant's title suit for eviction was maintainable.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 103, s. 2(h)
West Bengal Premises Tenancy Act, 1956s. 13(1), s. 13(6)(g), s. 2(h)

Subjects

tenancylicenceevictionWest Bengal Premises Tenancy ActSection 103 CPCsubstantial question of lawexclusive possessiontitle suit

Judgment

A
ACHINTY A KUMAR SAHA
r
v.
M/S. NANEE PRINTERS AND ORS.

JANUARY 30, 2004

[P. VENKATARAMA REDD! AND S.H. KAPADIA, JJ.]

Rent Control and Eviction:

C West Bengal Premises Tenancy Act, 1956; Ss. 13(/) & /3(6)(g)!Code of
Civil Procedure, 1908; Ss. 2(h), JOO & 103: Execution of an agreement of
licence of the suit property-Widow having life estate transferring it in favour
of alleged licensee-Subsequent sale thereof by her son-Vendee filing a title
suit for eviction and possession-Dismissed by Trial Court holding that the
D agreement was an agreement of licence and the licence was irrevocab/e-
Reversed by the first Appellate Court-On appeal, reversed by the High Court
holding the agreement as agreement <?f tenancy and not licence-On appeal,
Held: Exclusive possession of the premises given for monetary consideration
with a clause for renewal of the licence,· and respondent making payment of
municipal taxes and also made improvement on the properties-Son of the
E landlady/vendor consented to the agreement-Landlady issuing rent receipts-
Hence, intention, conduct and surrow1ding circumstances go to show that the
agreement was for tenancy in disguise of a licence.

Agreement-Nature of-Substantial question of law-Not adjudicated
upon-Power of the High Court-Held, since plea of tenancy raised before
F the first Appellate Court but not adjud.icated upon, High Court rightly i~voked
provisions under Section 103 CPC and gave its finding against the Vendee-
Appel/ant/Vendee failed to make any ground uls I 3(1) of the Act nor gave
notice under Section J3(6)(g) of the Act-Hence, title suit falls.

Father of respondent No.4, owner of the suit premises, executed a
G Will bequeathing all his properties to his widow during. her life time but
with no right to alienate the property and thereafter to his son (resp?ndent
No.4). Later, mother of respondent No.4 executed an agreement of licence .(
for JI years in favour of a firm (respondent Nos. 1 and 2). Thereafter,
respondent No.4 sold the entire properties including the suit premises to
H 28
A.K. SAHA v. NANEE PRINTERS 29
~
I' appcllant/Vendee. Vendee filed a Title Suit for eviction against respondent A
Nos. I and 2. Trial Court dismissed the suit holding that respondent Nos.
t and 2 were licensees and not tenants; that there was a renewal clause in
the agreement; that respondent No.4 was fully aware of the said agreement
and in fact consented to it; and that the licence was irrevocable as the
respondents had raised a permanent construction thereon with the consent
of the landlady (mother of respondent No.4). Aggrieved, Vendee filed an
B
appeal. Appellate Court allowed the appeal holding that the mother of
respondent No.4 had a limited right of ownership and therefore could not
create any right in the property to transfer the same to the respondents,
and passed decree of eviction in favour of the Vendee. The Court did not
adjudicate upon the question of tenancy. c
On appeal, High Court found that the agreement was of tenancy and
not of licence and that the agreement was given the nomenclature of licence
with a view to avoid application of the provisions of West Bengal Premises
and Tenancy Act. Hence, suit of eviction against the respondents was not
maintainable; and that in the absence of notice u/s 13(6)(g) and without D
any ground for eviction under Section 13(1) of the Act, the impugned
decree was a nullity. Hence the present appeal.

It was contended for. the appellant that the second appeal did not
involve substantial question of law nor the question was formulated by
E
,... the High 'Court. In the circumstances, High Court was not justified in
entertaining the second appeal; that the High Court entertained a new plea
of tenancy without following the mandatory provisions of Law; and that
the High Court erred in invoking Section 103 CPC to the facts of the case.

Dismissing the appeal, the Court F
HELD: 1.1. In order to ascertain the substance of a transaction, the
purpose and substance of the agreement require to be ascertained and
intention of the parties is the deciding factor. To ascertain the intention,
the surrounding circumstances including the conduct of the parties need
to be examined. In the present case, the High Court was right in examining G
the terms of the agreement coupled with the circumstances surrounding
~ the agreement in question like exclusive possession of the premises being

-. given to respondent Nos. l and 2 for monetary consideration for t t years
with a clause of renewal of the licence for a further period; payment of
municipal taxes by respondent Nos. t and 2, the rent receipts issued by H
30 SUPREME COURT REPORTS (2004) 2 S.C.R.

A the land lady, the premises being let out for business purposes in a
r'
'
residential locality and conduct 'of the plaintiffs in not examinin"g
respondent No.4 who had given consent to the agreement in question. All
these circumstances taken togetl~er show that respondent Nos.' I apd 2 were
not trespassers. They show that the agreement was a tenancy 'in the
B disguise- of a licence. (34-G-H; 35-A-BI

1.2. The main issue before the '.frial Court was whether ,the
agreement dated 5.7.1976 was a licence or a tenancy. The Trial Court .held
it to be a licence. The issue was there before. the lower AppelJate·Court
also but it was not adjudicated upon. When the core issue is not
C adjudicated upon, it results in a substantial question of law under Section
100 CPC. In the circumstances, the High Court was right in invoking
Section 103 CPC. Moreover, the plea of tenancy was allowed to be argued
before the-first Appellate Court but the said point was also not adjudicated
upon. Lastly, in se.cond appeal before the High Court, this poi~t was
argued by both sides whereupon the High Court gave its finding to the
D effect that respondent Nos. I and 2 were tenants and their tenancy cannot /
be terminated without notice under Section 13(6) of the Act and the failure
of appellant making out any of the grounds under Section 13(1) of the said
Act 1956. (36-D-E; 37-~-BI

Santosh Hazari v. Purushottam Tiward (Dead) by Lrs., AIR (2001) SC
E 965 and V. Dhanapal Chettiar ''· Yesodai Ammal, AIR (1979) SC 1745, relied
on.

Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors., (19971.5
sec 434, held inapplicable.
F 1.3. The fact that petition for amendment of written statement raising
the plea of statutory tenancy was rejected during the p~ndency of Second
Appeal cannot be considered to be fatal to the respond~nts' case. The issue
whether the respondents were tenants or not, was very muc_h alive
throughout the proceedings, though the Appellate Cou~ did not deal with
G that aspect. The High Court, therefore, assumed its powers ~n~er Section
103 .or the Act and found that issue against the appellant. (37-G-H; 38-AI

1.4. The Title Suit filed by the appellant was on the basis that the
agreement d~ted Sth July, 1976 was a licence which stood revoked and
on revocation respondent Nos. I and 2 became trespassers. However,;in
H view of the rinding of the High· Court that the said agreement was· a .•
A.K. SAHA v. NANEE PRINTERS [KAPADIA, J.] 31
~ contract or tenancy and that the respondents were tenants, the entire A
substratum or the original. Title Suit falls. 137-E-FI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6203 of
1999.

From the Judgment and Order dated 16.9.98 of the Calcutta High Court B
in S.A. No. 510 of 1996.

S.B. Sanyal, Ranjit Kumar, Pijush K. Roy, G. Ramakrishna Prasad for
the Appellant.

Jaideep Gupta, Rana Mukherjee, Siddharth Gautam, Goodwill lndeevar c
for the Respondent.

The Judgment of the Court was delivered by

KAPADIA, J. Ashok Kumar Bose (since deceased) was the owner of
the premises No. I 1911A, Harish Mukherjee Road, Bhowanipore, Calcutta- D
700 026. He died leaving behind him his wife Smt. Madhuri Bose, (since
deceased), Shri Ajoy Kumar Bose (son) and a daughter. Ashok Kumar Bose
left a Will dated 1st March, 1974 bequeathing all his properties to his widow
Smt. Madhuri Bose for the period of her natural life, but with no right to
alienate the property and thereafter to his son Ajoy Kumar Bose (respondent
No. 4 herein). On 5th July, 1976 Smt. Madhuri Bose executed an agreement E
of licence for 11 years in favour of Mis Nanee Printers, a proprietary firm
carried on by one Ranaji Ganguly (respondent Nos. I and 2 herein). On 10th
October, 1980, the appellant herein bought the entire property No. 119/IA
including the suit premises consisting of a Printing Press in a Katcha shed
from Ajoy Kumar Bose (respondent No.4) to which the deceased Smt. Madhuri F
Bose was a confirming party~ On 7th July, 1981, the present appellant filed
a Title Suit for eviction against respondent Nos. 1 and 2 herein and sought
possession of the suit premises. In the Title Suit, a declaration was sought to
the effect that Mis Nanee Printers were in unauthorised occupation of the suit
premises as trespassers on revocation of the leave and liCence agreement
dated 5th July, 1976. Mis Nanee Printers contested the Title Suit In the G
written statement, they alleged that they were monthly tenants in the suit
> premises; that the purported agreement dated 5th July 1976 was a tenancy in
---- disguise of a licence; that Shri Ajoy Kumar Bose (respondent No. 4 herein)
was a consenting party to the agreement dated 5th July, 1976 and since
respondent No. 2 herein was in need of accommodation, he had no option but H
32 SUPREME COURT REPORTS [2004] 2 S.C.R.

A to sign the agreement dated 5th July, 1976. By the written statenient, Mis . r·
\
Nanee Printers denid that Smt. Madhuri Bose (since deceased) had no right
to let out the suit premises on rent. It was further alleged by M/s Nanee
Printers that under the agreement dated 5th July 1976, Mis Nanee Printers
were permitted to· install electricity and telephone in the premises and under
the circumstances they were tenants in respect of the premises. In the alternative
B it was alleged that even if they were held to be licensees, the said licence was
irrevocable and therefore, the suit was liable to be dismissed with costs.

In the said suit, the following issues were framed by the trial court:

"I. Is this suit maintainable?
c
2. Has the suit been properly valued?
3. Has the Court fees been paid sufficient?
4. Has this Court jurisdiction to try the suit?

D '5. Are the defendant Nos. 2 and 3 thika tenants in respect of the
suit premises?
.....
6. Is there any relation of landlord and tenant between the patties?
7. Are the defendants tenants or licensees in respect of the suit
premises?
E
8. If the defendants nos. 2 to 3 are found to be licensees, whether
the said License is revocable or not?
9. Is the plaintiff entitled to get a decree as prayed for?
10. To what other reliefs, the plaintiff is entit.Jed?"
F
By judgment and order dated 29th August 1992, the trial Court came
to·the conclusion that respondent Nos. I and 2 herein were licensees and not
tenants; that the ·1icenc·e was for 11 years for running a Printing Press with
libe11y to the licensor to renew the licence for further 11 years and therefore,
G respondent Nos. 1 and 2- were not trespassers as alleged by the appellant
(plaintiff) herein. The trial Court further found that Shri Ajoy Kumar Bose
(respondent-No.4) was fully a..yare of the agreement dated 5th July, 1976
· between his-mother Smt. Madhuri Bose on one hand and respondent Nos: I
and 2 herein on the other hand and that he had consented to the agreement
dated 5th July, 1976 by his conduct. However, the trial court found that
H respondent Nos. I and 2 have failed to prove monthly tenancy. The trial
"'
,-7
A.K. SAHA v. NANEE PRINTERS [KAPADIA, J.) 33
court further found that the licence was irrevocable as respondent Nos. I and A
2 had raised a permanent construction and extension over the existing structure
by 50 feet with the consent of Smt. Madhuri Bose and her son respondent
No.4. The trial court further found that Shri Ajoy Kumar Bose (respondent
No. 4) was an important witness and yet he was not examined by the appellant
herein. In the circumstances, the trial court dismissed the Title Suit filed by
the appellant. B
Being aggrieved by the judgment and order of the trial court, the
appellant herein filed an appeal before the 9th Additional District Judge,
Alipore vide Title Appeal No. 132 of 1993. By judgment and order dated
I0th May 1996, the Appellate Court allowed the appeal holding that Smt.
Madhuri Bose had a limited ownership right and she was not competent to
c
create any right in property and transfer the same in favour of respondent
Nos. I and 2. The first Appellate Court further found that there was no
evidence of a irrevocable licence in favour of respondent Nos. I and 2 and,
therefore, the judgment of the trial court was reversed and a decree of eviction
was passed in favour of the appellant herein and against respondent 'Nos. I D
and 2 herein. Although the first Appellate Court allowed respondent Nos. I
and 2 to argue on the question of tenancy, the Court did not adjudicate upon
that question.

; Being aggrieved by the judgment and order of the first Appellate Court
dated I 0th May 1996, respondent Nos. I and 2 herein preferred an appeal E
before the High Court being Second Appeal No. 510 of 1996 inter a/;a on
the ground that the first Appellate Cou11 had failed to adjudicate the question
of tenancy; that the first Appellate Court had failed to appreciate that the
licence in question was tenancy in disguise. At this stage, it may be noted
that in the Second Appeal preferred by respondent Nos. I and 2 before the
High Court, the plea of irrevocable licence was given up. At this stage, it F
may be pointed out that during the pendency of the appeal before the High
Court, respondent Nos. I and 2 herein had moved an application under Section
107 Civil Procedure Code (C.P.C.) and under Order XLI Rule 23 C.P.C. for
amendment of the written statement filed by respondent Nos. I and 2 in the
trial com1. By judgment and order dated 31st January 1997, the application G
for amendment of the written statement was dismissed by the High Court
pending the hearing and final disposal of_ the Second Appeal.
>
By judgment and order dated 16th September, 1998 passed by the High
Court in Second Appeal No. 510 of 1996, the High Court came to the
conclusion that since exclusive possession of the suit premises was given for H
-- ·:~

r
34 SUPREME COURT RErORTS [2004) 2 S.C.R.
"""'
A business purposes in a residential area for consideration to respondent Nos.
I and 2 with a right to make further construction, the agreement dated 5th
July, 1976 was a tenancy and not a licence. The High Cou~ further found
that under the agreement dated 5th July 1976, respondent Nos. I and 2 were
entitled to bring in electricity and telephone connection which also indicated
that the object of the agreement was to create a tenancy. The High Court
B further found that the purported licence was for 11 years with authority given
to the licensor Smt. Madhuri Bose to renew the licence for further 11 years
also indicated that the agreement was that of a tenancy and not a licence. The
High Court came to the conclusion that the agreement was given a
nomenclature of leave and licence in order to avoid the provisions of West ...
c Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the said Act
1956"). In the circumstances, the High Court came to the conclusion that the
suit instituted by the appellants for eviction of respondent Nos. 1 and 2 as
trespassers was not maintainable. That in this case, respondent No. 4 was an
important witness and yet he was not examined by the appellant and in the
circumstances, the First Appellate Court ought to have drawn· an adverse
D inferen.ce aglinst the appellant. The High Court further observed that even
municipal taxes were payable and paid by respondent Nos. I and 2 which
circumstance supported the case of tenancy in favour of respondent Nos. I
and 2. While allowing the appeal, the High Court further observed that the
tenancy for 11 years came within the purview of the said Act 1956 and in
E the absence of notice under Section 13(6)(g) of the said Act 1956 and in the
absence of any of the grounds of eviction under Section 13( I) of the said Act
'
1956; the impugned decree was a nullity. Accordingly, the High Court.allowed
)
the Second Appeal No. 510 of 1996 tiled by respondent Nos. I and 2 and set
aside the judgment and order passed by the First Appellate Court and dismissed
the suit tiled by the appellant herein. Being aggrieved by the judgment and
F order passed by the High Court, the appellant has come to this Court by way
of special leave.

Before coming to the arguments, we may point out that in cases where
courts are required to consider the nature of transactions and th~ status of
parties thereto, one cannot go by mere nomenclatures such as, licence, licensee,
G licensor, licence fee etc. In order to ascertain the substance of the transaction,
we have to ascertain the purpose and the substance of the agreement. In such
cases, intention of the parties is the deciding factor. In order to ascertain the
intention, we have to examine the surrounding circumstances including the
"
conduct of the parties. In the present case, the High Court was right in
H examining the terms of agreement coupled with the circumstances surrounding
A.K. SAHA v. NANEE PRINTERS [KAPADIA, J.] 35
the agreement in question like exclusive possession of the premises being A
given to respondent Nos. I and 2 for monetary consideration for 11 years
with a clause of renewal of the licence for further 11 years; payment of
municipal taxes by respondent Nos. I and 2, the rent receipts issued by Smt.
Madhuri Bose, the premises being let out for business purposes in a residential
locality add conduct of the plaintiffs in not examining Ajoy Kumar Bose
(respondent No.4) who is held to have consented to the agreement in question. B
All the above circumstances taken together show that respondent Nos. I and
2 were not trespassers. They show that the agreement was a tenancy in
disg~ of a licence.
Mr. Sanyal, learned senior counsel for the appellant contended that a C
bare look at Section 100 C.P.C. shows that the jurisdiction of the High Court
to entertain the second appeal is confined to appeals which involve substantial
question of law specifically set out in the Memo of Appeal and formulated
by the High Court. He contended that in the present case no such question
has been set out in the Memo of Appeal and nor is the question so formulated
and the High Court was, therefore, not justified in entertaining the Second D
Appeal. He further contended that in second appeal, the High Court proceeded
to entertain a new plea of tenancy under the West Bengal Premises Tenancy
Act, I956 and e.ven rendered its decision on the said point without following
I the mandatory provisions of Section 100 C.P.C. He submitted that tenancy
under the said Act 1956 was never in issue. He submitted that the judgment E
of the High Court was illegal and in excess of its jurisdiction for deciding a
new point taken up for the first time in second appeal and, therefore, not
sustainable and deserves to be set aside. In this connection, reliance was
placed by him on the judgment of this Court in the case of Kshitish Chandra
Purkail v. Santosh Kumar Purkait and Ors., reported in (1997] 5 SCC 438.
Mr. Sanyal further contended that on 6th April J992 an application was F
moved by respondent Nos. 1 and 2 to amend the written statement pending
the hearing and final disposal of second appeal before the High Court which
was expressly rejected by the High Court vide its order dated 3 lst January
1997. In this connection, i~ was pointed out that respondent Nos. I and 2 had
applied for amendment of the written statement vide application dated 6.4.1992 G
in the Title Suit of198 l and by that application they attempted to raise a new
;.. plea of statutory tenancy under the said Act 1956 which was rejected by the
High Court in second appeal, and yet by the impugned judgment, the High
• Court has hetd that respondent Nos. t and 2 were the tenants under the said
Act 1956. Mr. Sanyal, therefore, contended that the High Court had erred in
entertaining a new plea for the first time in· second appeal and that it had H
36 SUPREME COURT REPORTS (2004] 2 S.C.R.

A erred in rendering a decision 01,1 a riew point without even prior notice thereof
to the appellan_ts which was not permissible under Section I00 C.P.C. and
consequently, the impugned judgn1ent deserves to be set aside,. Learned counsel
for the appellant further contended that the High Court had erred in invoking
'section 103 C.P.C. in.this case. He contended that section 103 C.P.C. had no
application to the facts of this case as respondent Nos. I and 2 had given up
.B the plea of tenancy (is~ue No. 6) before the trial Court. He further contended
that the trial court in the Title Suit had categorically come to the conclusion
that respondent Nos. I and 2 were not the tenants of the suit premises and
despite that declaration n~ cross objection was filed before the First ~ellate
Court. He further pointed out that even the plea of irrevocable licencv was
C given up by responden~ Nos. I and 2 in second appeal before the High Court.
Mr. Sanyal, learned senior counsel for the appellant contended that in order
to attract section I03 C.P.C., the appellate Cou11 must be satisfied that an
.issue necessary for. the disposal of the appeal had arisen before the lower
appella~e court which has not been decided by the lower appellate court or
which has been wrongly decided by the said Court. In _the circumstances, he
submitted that the High Court had erred in invoking section 103 C.P.C. in
this case.

We do not tina any merit in the arguments advanced on behalf of the
appellant. The main issue around which the entire c~se evolves is : whether
E the agreement dated 5.7.1976 was a license or a tenancy. This issue was there
before the trial court and the agreement was held to be a license. It was there
also before the lower Appellate Court but it was not adjudicated upon. When
'
the core issue is not adjudicated upo11, it results in a substantial question of
law under "section 100 C.P.C. In the case of Santosh Hazari v. Purushouam
Tiward (Dead) by lrs., reported in AIR (200 I) SC 965, it has been held that
F whether a question of law. is a substantial question of law in a case will
depend on facts and circumstances Of each case, the paramount consideration
being the need to strike a balance betw~en obligation to do justice and necessity
to avoid prolongation of any dispute. In that matter, this Court found that an
important issue had arisen for determination before the first appellate court:
whether dependent.had made out the case of adverse possession and whether
G the suit filed by the plaintiff was liable to be dismissed as barred by time
under Article 65 ofthe Limitation Act 1963, which issue was decided by a
cryptic order passed by the first appellate court and in the circumstances this
Court took the view that failure to decide the core issue gives rise to a
substantial question of law. In our view, the judgment of this Court in the
H case of Santosh Hazari, (supra) applies to the facts of this case. Although the
\.

A.K. SAHAv. NANEE PRINTERS [KAPADIA, J.] 37

core issue of tenancy· arose before the first ·appell~te co'urt the same \vasnot A
adjudicated upon and in the cirCunlStances the High court w3s right in irlVoking·
Section 103 C.P.C. Moreover as can be seen from the record, the plea of
tenancy w;,. allowed to be ~rgued before the first app~llat~ court but the said
: - ' ' J.. · ,, - ' • ·' - , • .
point was not adjudicated upon. Lastly, in the High Court i~ second appeal,
this point was argued by both sides whereupon the High ··court gave its B ·
finding to the effect that respondent Nos. I and 2 were tenants and their
tenancy cannot be terminated without notice under Section 13(6) and the
failur,• of appellant making out ariy of the grounds under Section -13(1) of the
.
<"-saifAct. 1956. Hence, the judgment of this Court in the- case ..
of Kshitish
Chandra, (supra) has no application. It is now settled by the judgment of this
Court in the case of V. Dhanapal Chettiar v. Yesodai Ammal, reported in AIR C
(1979) SC 1745 that in order to get a decree of eviction against the tenancy
under any State Rent Control Act, determination of a lease in accordance
with the T.P. Act is unnecessary and surplusage as the landlord cannot get
the eviction of the tenant even after such determination and the tenant continues
to be the tenant even thereafter till the landlord makes out a case under the .D
Rent Act: This position is also indicated by the definition of the word 'tenant'
under section 2(h) of the said A~t 1956. '
. f
Lastly it has been contended on behalf of the appellant that agreement
dated 5th July 1976 has since expired by afflux of time during the pendency
of proceedings and in view of subsequent event the High Court should have E
moulded the relief and granted decree for eviction on that ground alone. We
do not find any merit in this argument. The Title Suit filed by the appellant
was on the basis that the agreement dated 5th July; 1.976 was a licence which
stood revoked and on revocation the said respondent Nos. I and 2 became
trespassers. However, in view of the above finding of the High Court that the
said agreement dated 5th July, 1976 was a contract of tenancy and that the F
said respondents were tenants, the entire substratum of the original Title Suit
falls. Hence, we do not find any merit in the above argument

The contention of the appellant's counsel that Issue No. 6 having not
been pressed before the trial Court, the plea°i>f tenancy could not have been
raised by the respondents is equally untenable. Issue No. 7 is comprehensive G
enough to cover that point. The fact that petition for amendment of written
statement raising the plea of statutory tenancy was rejected during the pendency
of Second Appeal cannot also be considered to be fatal to the respondents'
case. The issue whether the respondents were tenants or not was very much
alive throughout the proceedings, though the appellate· Court did not deal H
38 SUPREME COURT REPORTS [2004) 2 S.C.R.

A with that aspect. The High Court, therefore, assumed its powers under Section
I03 and found that issue against the appellant.

For the foregoing reasons, this civil appeal fails. We, accordingly, dismiss
the same, but in the facts and circumstances of the case, direct the parties to
bear their own ·co~ts throughout.
B
S.K.S. Appeal dismissed.