A.P.Sen j. -
(1.) THIS appeal, filed by the plaintiff, is directed against a decree of the 1st Additional District Judge, Raipur, dated 10th March 1967, whereby his suit for ejectment and for mesne profits has been dismissed.
(2.) THE material facts leading to this appeal are these. THE plaintiff, Babu Harisingh Darbar, is the owner of a cinema theatre known as the "Darbar Talkies", at Raipur. THE theatre with all its cinematograph equipments and other fittings and fixtures were let out by him to one Ratanlal Rathi, the defendant herein, by an unregistered lease deed dated 24th March 1956. THE lease in the first instance was apparently for a period of three years commencing from 1st January 1956, with an option to the lessee for a renewal of the lease for a further period of three years. THE parties are, however, now agreed that the Indenture of Lease being unregistered was legally inoperative and that the tenancy created by implication of law, was a lease from month to month under section 106 of the Transfer of Property Act. THE defendant must, therefore, be regarded as a monthly tenant under the plaintiff in respect of the premises in suit. On the 10th April 1962, the plaintiff commenced the present suit for ejectment and mesne profits on the allegation that the tenancy was determined by a notice to quit and that he bona fide required the accommodation for starting therein his own business of exhibiting cinematograph films. THE defendant resisted the claim, inter alia, on the ground that the plaintiff did not bona fide require the accommodation for that purpose. THE Court of first instance has found, upon evidence, that the alleged need was not a "bona fide requirement", within the meaning of section 12(1) (f) of the Madhya Pradesh Accommodation Control Act, 1961, but that it was just a pretence to get the accommodation vacated with the ulterior object of earning an enhanced rent.
After hearing of this appeal had concluded and the appeal was closed for judgment, we felt some difficulty as regards the applicability of the Madhya Pradesh Accommodation Control Act, 1961, to the premises in suit. We, accordingly, had the appeal fixed for re-hearing and have had the benefit of hearing the learned counsel on the question, namely, whether the Cinema theatre is an "accommodation" within the meaning of the Madhya Pradesh Accommodation Control Act, 1961. The learned counsel for the appellant has now contended that the lease was outside the purview of the Madhya Pradesh Accommodation Control Act, 1961, as it was not in respect of any building or part of building, but was in reality a composite lease of a running Cinema business. On the other hand, the learned counsel for the respondent has urged that the plaintiff having taken up the position that he requires the premises in question under section 12 (1) (f), for starting his own business of exhibiting films, must be taken to have admitted that the premises fall within the definition of the term 'accommodation', as defined in section 2 (a) of the Madhya Pradesh Accommodation Control Act, 1961, and that being so, it was not open to him to turn round now at this stage and contend that the suit premises were outside the Act, by the principle of estoppel. Alternatively, he urged that the lease was of the Cinema theatre, which was a "building", and not of the equipments and other fixtures installed therein, and, therefore, an "accommodation" within the meaning of the Act.
We fail to appreciate how the plaintiff can be prevented from claiming relief in his own right as a lessor, on an alternative basis. In the circumstances of this nature, the question of estoppel can, it seems, hardly arises; for it is difficult to imagine that a person is estopped from averring that what in truth appears or can upon correct construction be gathered from the record. That a party is not estopped from alleging that which is consistent with a record seems to be truism. The principle upon which the rule of estoppel rests is that it would be most inequitable and unjust if a person, who has by a representation made or by conduct amounting to a representation induced another to act as he would not have otherwise done, is allowed to deny or repudiate the effect of a former representation to the detriment of the other. So, in Sales Tax Officer v. Kanhaiyalal, AIR 1959 SC 135, their Lordships observed:
"Estoppel arises only when the plaintiff by his acts or conduct makes a representation to the defendant of a certain state of facts which is acted upon by the defendant to his detriment; it is only then that the plaintiff is estopped from setting up a different state of facts."
In regard to the application of the doctrine of estoppel to inconsistent positions, Bigelow states in his Treatise, as follows :
"It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play fast and loose."
(3.) THE facts of the case before us are, however, clearly different and the doctrine of approbate and reprobate has no application for the simple reason that the defendant has not acted to his detriment on account of any representation made to him. It is well established that, upon a given set of facts, a plaintiff may rely upon several different rights in the alternative even though they may be inconsistent. Similarly, a defendant may raise as many distinct and separate and, therefore, inconsistent defences as he may think proper. In this case, what factually leased out is not in controversy. THErefore, there being no alteration of position to the detriment of any party as a consequence of representation as to a state of facts, no question of estoppel can arise merely because one or, as in this case, both parties were labouring under a mistake of law in regard to the true nature of the transaction. In support of the contention that the plaintiff cannot now be allowed to claim relief on the basis that the subject-matter of the lease was not an accommodation within the meaning of the Act, reliance was placed upon Amritlal N. Shah v. Alla Annapurnamma, AIR 1959 AP 9. In our opinion, that case is only an instance of the application of the doctrine of estoppel to the peculiar facts appearing therein. THEre, a suit for eviction under section 7 of the Madras Act ( Act No. 15 ) was rejected on the tenant's plea that the premises did not fall within the definition of 'building' and he was not, therefore, a tenant within the Act, and their Lordships, therefore, held that it was not open to him to turn round and contend in a subsequent civil suit for eviction that lease related to a 'building' within the Act and that the civil Court had no jurisdiction. THE reason for the view taken by their Lordships is that a defendant who obtains judgment on an allegation that a particular obstacle exists, cannot, in a subsequent suit, based upon such allegation deny its truth. It is needless to refer to the several authorities on the subject, because the principle that a party litigant cannot be permitted to assume inconsistent positions in Court to the detriment of his opponent, is well settled [See Sarkar's Evidence, 11th Edition, pp. 1088-89]. As we have already indicated, in the facts of this case, no question of estoppel by reason of assumption of inconsistent positions arises.
The questions for consideration in this appeal are briefly, the following : (i) Whether the requirements of section 12 (1) (f) of the Madhya Pradesh Accommodation Control Act, 1961, are fulfilled, and if not, then alternatively, (ii) Whether the lease-hold premises are outside the purview of the Act, not being an "accommodation", within the meaning of that term as defined in section 2 (a) thereof.;