MIS RAPTAKOS BRETT AND CO. LTD. v. GANESH PROPERTY

1.5. Even if the suit is filed by an unregistered partnership firm against a third party and treated to be incompetent as per Section 69(2) of the Partnership Act, if pending the suit before a decree is obtained the D plaintiff gets itself registered, the defect in the earlier filing which even though may result in treatiug the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. If such an approach is adopted, no real harm would be caused to either side. However, on the facts of the present case, it is not necessary for this Court to express any final opinion · E on this question or to direct reference to a larger Bench for reconsidera tion. [522-A-B; F-G] , Sivjnanam Abraham & Anr. v. Mathevan Pillai, AIR (1952) (Vol. 39) Travancore 359; Mrs. 171ayam111mal v. People's Charity Fund, Bangalore & F Ors., AIR (1978) Karnataka 125 and Padam Singh lain v. Mis. Chandra Bros. & Ors., AIR (1990) Pat 95, distinguished. Mis. Goraklmath Champa/al Pandey v. Hansraj Manot, Calcutta Week ly Notes, Vol. 74 (1969-70) 269; Approved. G Mis. Jammu Cold Storage & General Mills Ltd. v. Mis. Khairati Lal & Sons, AIR (1960) J&K 101; Danma/ Parshotam Dass (Finn) v. Babu Ram Chhote Lal (Finn), (1936) AIR All 3; Dwijendra Nath Singh v. Govinda Chandra & A11r., AIR (1953) Cal 497; C./. T., AP v. Mis. layalakshmi Rice and Oil Mills Contractor Co., [1971] 1 SCC 280; Mis. Shriram Finance H C01poration v. Yasin Khan & Ors., [1989) 3 SCC 476; Sunder/al & Sons v. RAPTAKOS BREIT AND CO. LID. v. GANFSH PROPERTY [S.B. MAJMUDAR.J.J 489 Yagendra Nath Singh & Anr., AIR (1976) Cal 471; Jakiuddin Badruddin & A Ors. v. Vithoba Jaga1111ath Gadali & Anr., AIR (1939) Nag 301; Nazir Ahmad & Ors. v. Peoples Bank of Northern India Ltd., AIR29 (1942) Lah 289; Abdul Karim v. Ramdas Naraya11das Shop, ILR (1951) Nag 31; Des Raj Prem Chand &Anr. (Fi.mt) v. Hira Lal Kali Ram &Anr., AIR (1952) Punjab, 415; Puran Mal Ganga Ram (Fi.mi) v. Celltral Bank of India Ltd., AIR (1953) B Pun. 235; Smt. Saiyada Mossarat v. Hindustan Steel Ltd., Bhilai Steel Plant & Ors., [1989] 1SCC272; Mumbai Kamgar Sabha, Bomb. v. Mis. Abdulbhai Faizullabhai & Ors., [1976] 3 SCC 832; Sreenivasa Ge11eral Traders & 01:~. v. State of AP, [1983] 4 SCC 353; Bansidhar Sa11karlal v. Md. Ibrahim & A11r., AIR (1971) SC 1292; Everest Coal Co. Pvt. Ltd. v. State of Bihar, AIR (1977) SC 2304; Udhav Singh v. Madhav Rao Sci11dia, [1976] 2 SCR 246; Ram Swarup Gupta (dead) by Lrs. v. Bi.shun Narai11 Inter College, [1987] 2 SCC 555; Ganga Dutt Murarka v. Kartik Chandra Das & Ors., [1961] 3 SCR 813; M.C. Chockalingam & Ors. v. V. Ma11ickayasagam & Ors., [1974] 1 SCC 48 and R. V. Bhupal Prasad v. State of A.P., [1995] 5 SCC 698, referred to. c Concise Oxford Dictionary, 7th Edition.; Foa's Ge11eral Law of La11dlord aiid Tenallt, 8th Edn. Hill a11d Redman 011 Landlord & Tenllllt, 17th Edn. Mu/la, Tra11Sfer of Property Act, 8th Edn., referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4657 of ~- From the Judgment and Order dated 11.8.97 of the Calcutta High Court in F.A. No. 253 of 1992. D E R.F. Nariman, Gopal Jain, R.N. Karanjawala, Ms. Nandini Gore, Bhaskar Pradhan, Arunabh Choudhary and Ms. Manik Karanjawala for the Appellant. F Dr. A.M. Singhvi, Jaydeep Gupta, Pradeep Sanchati and Pranab Kumar Mullick for the Respondent. · The Judgment of the Court was delivered by S.B. MAJMUDAR, J. Leave granted. We have heard learned counsel for the parties finally in this appeal. Hence, this appeal is being disposed of by this judgment. G H .. 490 SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R. A This appeal by special leave seeks to challenge the decision rendered by learned Single Judge of the High Court ·of Judicature at Calcutta confirming decree for possession passed against the appellant defendant by the learned Judge, 7th Court of City Civil at Calcutta in Title Suit No. 1481 of 1986. In order to appreciate the grievance of the B · appellant-defendant, it is necessary to note· ~ few relevant background facts. ' FACTUALMATRIX: The respondent-plaintiff is the owner of suit premises consisting of C ground floor of a building situated at Marquis Street, Calcutta. The said premises were rented to the appellant -defendant on a monthly rent of Rs. 2045 by a registered lease dated 16th March, 1964. This lease was for a period- of 21 years commencing from 16th March, 1964 and ending on 15th March, 1985. On the expiry of the said period, the respondent-plaintiff D alleging to be a registered partnership firm, filed the aforesaid suit praying for a decree for possession as well as damages @ Rs. 200 per day for illegal occupation of the premises by the appellant-defendant. The defence of the appellant-defendant was that after the expiry of the lease period, it had continued to be a tenant by acceptance of rent by the defendant-landlord E and hence it had become a tenant by holding over under Section 116 of the Transfer of Property Act, 1882 (for short 'the Property Act'). Further defence was taken by the appellant-defendant by way of a separate applica tion seeking dismissal of the suit under Order 7 Rule 11( d) of Code of Civil Procedure (for short 'CPC') on the ground that the suit for possession as F filed by the ·plaintiff-respondent, which was an unregistered partnership firm, was not maintainable. Learned Trial Judge, framed relevant issues on the pleadings and came to the conclusion that the defendant-appellant was not a tenant holding over and was in unlawful possession of the premises after the expiry G of the lease period. On the question of maintainability of the suit, the Trial Court held that the suit was not hit by Section 69 sub-section (2) of the Indian Partnership Act, 1932 (for short 'the Partnership Act'). Accordingly, a decree for possession was passed. The appellant-defendant carried the . matter in first appeal before the High Court. As noted earlier, the learned H · Single Judge who decided the said appeal, held against the appellant- ,..., - .. ...... RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY [S.B. MAJMUDAR,J.] 491 defendant and dismissed the appeal. That is how the appellant-defendant A is before us in the present case. RIVAL CONTENTIONS: B Learned senior counsel, Shri R.F. Narirnan for the appellant- defen dant, placed a solitary contention for our consideration. He submitted that on a proper reading of the plaint as filed by the respondent. it has to be held that the respondent sought to enforce a right arising out of the contract of lease between the parties and as on the date of the suit, the respondent was not a registered partnership firm, the suit was ex-facie not maintainable and was required to be dismissed on this ground alone. However, he fairly stated that on merits, as the West Bengal Rent Act does not apply to a lease for 21 years and more and as the finding of the courts below that the appellant was not a tenant by holding over, he cannot urge any other contention save and except the aforesaid solitary one. In support of his contentio'ii he also submitted that it is a fact that even though pending D the suit the respondent plaintiffs firm got registered, the said registration was of no avail to the respondent as the suit which was a still born one could not be revived on account of this subsequent event. In support of this contention Shri Narirnan placed reliance on various decisions of this Court and High Courts to which we will make a reference at an appropriate E stage in latter part of this judgment. c Learned senior counsel Dr. A.M. Singhvi for the respondent-plaintiff contested the aforesaid contention and contended that only the averments made in the plaint have to be seen on demurer for deciding whether the suit was barred under Section 69 sub- section (2) of the Partnership Act, that on a conjoint reading of relevant clauses of the plaint it has to be held that the suit was not filed for enforcing any right arising from a contract which was already at an end by efflux of time and that the suit was not based on any of the contraetual terms. Reference to the said contract or any of its clauses was purely for mentioning a historical event for support- G ing the plaintiff's case for decision and such factual narration of past events did not form the foundation of the plaint nor did they form part of the . cause of action. In the alternative, it was contended by Dr. Singhvi that even assuming that the suit could be said to have been partly based on any of the terms of the contract so as to attract the bar of Section 69(2) of the H F 492 • SUPREME COURT REPORTS (1998) SUPP. l S.C.R. A Partnership Act, this was in fact based on two causes of action; (i) on the covenant contained in the erstwhile contract; (ii) on the law of the land, namely, common law as well as Section lll(a) read with Section 108(q) of the Property Act and so far as this latter cause of action is concerned, it cannot in any way be said to be arising out of the contract. Hence the said B cause of action was not in any way hit by Section 69(2) of the Partnership Act. He lastly contended without prejudice to his aforesaid contentions that even if a view is taken that the suit as a whole was hit by Section 69(2) of the Partnership Act, as pending this suit before the decree could be passed, the plaintiff-respondent had put his house in order and got the firm C registered the initial defect, if any, which made the suit dormant got cured and consequently it could not be said that the decree passed by the Trial Court was in any way erroneous in law. In support of his contentions, he also invited our attention to a number of decisions of this court and various High Courts to which we will make a reference hereafter. D E F· G In view of the aforesaid rival contentions, the following points arise for our consideration : (i) Whether the suit filed by the respondent was barred under Section 69 sub-section (2) of the Partnership Act either wholly or in part; (ii) If the suit was so barred, whether subsequent registration of the plaintiffs firm under the Partnership Act could revive the suit or to make it competent at least from the date on which such registration pending the suit was obtained by the respon- dent firm; (iii) What final order? We shall deal with these points in the same sequence in which they are catalogued herein above. Point No. 1: In order to appreciate the rival contentions centering round this point, it will be necessary to note the relevant provision of the Partnership H Act. Section 69 sub-section (2) reads as under : •<--.. '- RAPTAKOS BREIT AND CO.LID." GANF.5H PROPERTY (S.B. MAIMUDAR, J.) 493 "69. Effect of 11011-registration - (1) xxx (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm". A mere look at the aforesaid provision shows that the suit filed by an un registered firm ag.llnst a third party for enforcement of any right arising from a contract with such third party would be barred at its very inception. To attract the aforesaid bar to the suit the following conditions must be satisfied: A B c (i) That the pfaintiff partnership _firm on the date of the suit must not be registered under the provisions of the Partnership Act and consequently or even otherwise the persons suing are not D shown in the Register of Firms as partners of the firm, on the date of the suit. (ii) Such unregistered firm or the partners mentioned in th~ sub-. section must be suing the defendant third party. (iii) Such a suit must be for enforcement of a right arising from a contract of the firm with such a third party. E Chapter VII of the Partnership Act deals with registration of firms. As per Section 56 thereof the State Government of any State may, by notification in the Official Gazette, direct that the provisions of this Chapter shall not F apply to that State or to any part thereof specified in the notification. It is not the case of any party that any such exemption has been granted so as not to make applicable the said Chapter to the pending controversy be tween the parties. As per Section 57, the State Government may, by notification, appoint a Registrar of Firms for the purpose of the Act. As G per Section 58, the registration of a firm can be effected at any time by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated or proposed to be situated, for the purpose of getting the firm registered by furnishing relevant data as re quired by the said Section. As per Section 59, when the· Registrar is satisfied that provisions of Section 58 have been duly complied with, he H .... - .. · 494 SUPREME COURT REPORTS (1998] SUPP.1 S.C.R. A shall record an entry of the statement in a register called the Register of Firms, and then he has to file the statement furnished to him by the firm concerned. It is in the light oi the aforesaid statutory provisions of Chapter VII that the effect of non-registration has to be considered as laid down by Section 69 in its various sub-clauses. We are concerned in the present case only with Section 69 sub-section (2) as extracted earlier. B Coming back to the consideration of the requirements of Section 69 sub-section (2) under which bar to file such a suit would arise on the part of the unregistered firm it may be noted that on the facts of the present case it is not in dispute between the parties that when the suit was filed in C 1986 the first condition for attracting this bar squarely got attracted namely, that the respondent firm was not a registered firm though it was wrongly mentioned in the plaint that it was a registered firm. Second condition for attracting the bar was also found satisfied as the appellant was a third party being erstwhile tenant against whom the suit was filed. It is the third condition which is the bone of serious contention between the parties. D Learned senior counsel Shri Nariman for the appellant submitted that the third condition was also satisfied on the facts of the present case as the suit filed by the respondent-plaintiff unregistered firm was for enforce ment of the right of the respondent-plaintiff arising _from the contract of lease which was entered into between the parties in 1964 for a period of 21 years and which had expired at the end of 15th March, 1985. It is this contention of learned senior counsel Shri Nariman that has been vehemently contested by learned senior counsel Dr. Singhvi for the respon dent-plaintiff. At the outset he submitted that for deciding the question whether the suit is barred under Section 69 sub-section (2) of the Partner ship Act or not only averments in the plaint as a whole will have to be seen. F In this connection, h:: rightly invited our attention to Order VII Rule 11 E Clause ( d) of the CPC which reads as under : . "ORDER VII : xxx xxx xxx

#11. Rejection of plaint - The plaint shall be rejected in the following cases: (a) xxx (b) xxx (c) xxx G H RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY [S.B. MAJMUDAR,J.) 495 ( d) where the suit appears from the statement in the plaint to be A barred by any law" : We have, therefore, to see the averments m the plaint for deciding whether on the averments in the plaint, the suit can be said to have been barred under Section 69 sub-section (2) of the Partnership Act as that is the only bar which is relied upon by the learned senior. counsel for the appellant for non-suiting the plaint. The plaint in the present case is a very short one consisting of five paragraphs. It would, therefore, be appropriate to reproduce these paragraphs. They are as under : B >- "l. The defendant was a Lessee under the plaintiff in respect C of ground floor of the main building (except the stair case and common spaces) as premises No. 6, Marquis Street, Calcutta, butted and bounded as given in the schedule hereunder at a monthly rent of Rs. 2045 payable according to English Calendar month for a term of twenty D one years commencing from 16th March,1964 and ending on 15th March, 1985 under a Registered Lease dated 16th March, 1964.

#2. The said lease dated 16th March, 1964 in respect of the suit-premises terminated by efflux of time on the expiry of E 15th March, 1985 but the defendant has failed and neglected · to quit, vacate and deliver up peaceful possession of suit premises to the plaintiff as required under the covenant of the said lease and law of land. F

#3. The plaintiff in this suit seeks to recover from the defendant khas possession of the suit premises which the defendant has failed to vacate and is in wrongful occupation thereof. The plaintiff also claims and seeks to recover mesne profits or damages @ Rs. 200 per day or at such rate as the learned Court may determine, from 16th March, 1985 till recovery of G khas possession.

#4. The cause of action for this suit arose at 6, Marquis Street, Calcutta, P.S. Taltola, within the jurisdiction of this Court on the expiry of 15th day of March, 1985 and subsequently. H 496 SUPREME COURT REPORTS [1998J SUPP. 1 S.C.R. A

#5. For the purpose of jurisdiction and court fee the value of the suit has been assessed at Rs. 25,540 (monthly rent Rs. 2045.00 x 12) for recovery of possession and tentatively valued at Rs. 10.00 for recovery of mesne profit or damages. The plaintiff undertakes to pay further court fee as may be assessed." B Based on these averments, the plaintiff has prayed for decree for khas possession and mesne profits @ Rs. 200 per day or at such rate as the Court may determine from 16th March, 1985 till recovery of khas posses sion. Our attention was invited by learned senior counsel for the parties on the moot question as to how the averments in the plaint have to be C construed. Shri Nariman invited our attention tO a decision of this Court in Udhav Singh v. Madhav Rao Sci11dia, [1976] 2 SCR 246. In the ~aid report at page 254, Sarkaria, J, speaking for the Court made the following per tinent observations : D E F G "We are afraid, this ingenious method of construction after com partmentalisation, dissection, segregation and inversion of the lan gtlage of the paragraph, suggested by Counsel, runs counter to the cardinal cannon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to call out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or substraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole." On the other hand, Dr. Singhvi for the respondent, invited our attention to a decision of this Court in Ram Saro.p Gupta (Dead) by Lrs. v. Bishu11 Narain Inter College & Ors., [1987] 2 SCC 555 at page 562, wherein it is observed that. " .. ; .. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities .... " Keeping in view this settled legal position, let us see what has the plaintiff H, alleged in the suit as the basis of its cause of action. This can be culled out RAPTAKOS BREIT AND CO. LID. v. GANESH PROPERTY [S.B. MAJMUDAR,J.] 497 B on a conjoint reading of all the aforesaid paragraphs of the plaint. So far A as the first paragraph is concerned, it is obvious that the plaintiff has relied on background facts for introducing its case against the defendant. It has traced the history of the relations between the parties and has tried to show how the defendant came to occupy the suit premises. Reference to registered lease of 16th March, 1964 in the first paragraph, therefore, cannot be said to be the foundation of the right to sue as tried to be got enforced by the plaintiff through the machinery of the court. It is not possible to agree with the contention of the learned senior counsel Shri Nariman for the appellant that the first paragraph shows the foundation of the right of the plaintiff for evicting the defendant. It is obvious that unless the history of the relationship of the parties is traced the plaintiff cannot show how the defendant has continued to remain in posstssion after the expiry of the lease period. However, the subsequent paragraphs 2 to 5 have been relied upon by the counsel for both the parties for supporting their respective cases and, therefore, they require a closer scrutiny. So far as the second paragraph is concerned, it is clearly stated that despite the efflux D of time permitting the lease, the defendant had failed to evict and deliver actual possession of the suit premises to the plaintiff on expiry of 15th March, 1985. It is also obvious that this averment is based on and expressly refers to the covenant in the lease which required the defendant on expiry of the lease to deliver vacant and peaceful possession to the plaintiff. So far as the said covenant is concerned, when we turn to the lease deed we find mentioned therein at Clause 11, the following material recitals : E c "11. That the lessees shall quit and deliver peaceful and vacant possession of the said demised premises to the lessors or their agents on the. expiry of the tenure of this lease and/or sooner determination thereof for any reason whatsoever." F Similar recitals are found in Clause 14 of the lease deed which reads as under: "That on the expiry of the period of the terms of herein mentioned G and/or sooner determination thereof for any reason whatsoever the lessee shall peacefully and quietly quit, yield and deliver vacant possession of the said demised premises to the lessors of their nominees anci agents in good order, condition and tenantable repair with usual wear and tear and damages caused by other H 498 A SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R. causes as mentioned in Item No. 6, above excepted." A conjoint reading of these clauses in the lease deed with the averments in paragraph 2 of the plaint, therefore, clearly indicate that the plaintiff had sought to enforce through court, amongst others its right to get B restoration of the peaceful possession of the suit premises from the defen dant arising from the alleged breach of these relevant covenants on the part of the defendant on the expiry of the lease period. If the averments in paragraph 2 had rested at this stage, Shri Nariman would have been perfectly justified in submitting that the plaintiff was trying to enforce solely its right arising out of the erstwhile contract. However, the very same C paragraph proceeds further and states in the last line thereof that the defendant had not vacated the premises under the law of the land. This raises the moot question whether the plaint as framed is based on two causes of action or only on one solitary cause of action as submitted by Shri Nariman, learned senior counsel for the appellant-defendant. Dr. D Singhvi, learned senior counsel for the plaintiff at the outset submitted that the recitals in paragraph 2 regarding the covenants was by way of a historical fact and the suit is purely based on the law of the land, namely, the Common Law as well as Section 108(q) read with Section lll(a) of the Property Act. While Shri Nariman for the appellant took an entirely opposite stand by submitting that these very recitals in paragraph 2 show that the suit as based solely on the right arising from the a11eged breach of covenant by defendant and the reference to law of the land is by way of abundant caution. As we shall see hereinafter, neither of these extreme covenants can be countenanced. Turning to paragraph 3, it is no doubt true as submitted by Dr. Singh vi for the respondent that the plaintiff has clearly F stated that it is seeking to recover possession from the defendant as the defendant failed to vacate and is in wrongful occupation of the premises. The words "wrongful occupation of the premises" according to Dr. Singhvi show that the plaintiff was alleging in clear terms that the defendant was in unauthorised occupation of the premises after the termination of the G contract. Placing reliance on a number of decisions of this Court it was submitted by Dr. Singhvi that on the expiry of the period of tenancy the erstwhile tenant in the absence of any evidence of tenancy by holding over has to be treated as a tenant at sufferance akin to a trespasser and, therefore, the averments in paragraph 3 of the plaint clearly show that the suit was for enforcing the legal right arising from any law or under any H relevant provision of the Property Act and the suit cannot . be said to be E RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY IS.B. MAJMUDAR, J.] 499 . based on any covenant of the erstwhile lease which was dead and gone by A efflux of time. In this connection, strong reliance was placed by Dr. Singhvi in the latter part of paragraph which indicated that the plaintiff was seeking to recover mesne profits of damages @ Rs. 200 per day which had nothing to do with the erstwhile lease rent fixed under the contract. According to Dr. Singhvi this averment clearly indicated that the plaintiff treated the defendant to be in unlawful possession and hence the claim for damages. On the other h~rtd, Shri Nariman learned senior counsel for the appellant submitted that the term "wrongful occupation" as found in paragraph 3 when read in the light of paragraph 2 would indicate that according to the plaintiff, defendant was in breach of covenant of handing over of peaceful possession on expiry of lease as enjoined on the defendant under the contract of lease and that. "wrongful occupation" due to alleged breach of contract was different from "unlawful occupation". In our view, this hyper technical submission of Shri N ariman cannot be countenanced as there is no real distinction between the terms "wrongful occupation" and "unlawful occupation". Whatever is unlawful cannot be said to be rightful and would D necessarily be wrongful. In Concise Oxford Dictionary, 7th Edition, the term "wrongful" is defined at page 1240 as under : B c "characterised by unfairness or injustice; contrary to law; (of per son) not entitled to position etc. occupied;" E It is, therefore, obvious that.recitals in paragraph 3 can support the case of the plaintiff both on the ground, if any, that the defendant had com mitted breach of the covenant and therefore, it was in wrongful occupation and also equally on the ground that under law of the land, the defendant was not entitled to continue in possession after the termination of the F . period of lease and, therefore, it was in unlawful or wrongful occupation. The words "wrongful occupation" cannot, therefore, be inter!'lreted to mean only 'in breach of any of the terms and conditions of the contract' and can legitimately take in its sweep unlawful occupation after the lease expired on efflux of time as per Section 111( a) of the Property Act read with Section 108( q) thereof. The restricted meaning of the term 'wrongful G occupation' as tried to be suggested by Shri Nariman cannot be accepted. On the contrary, the claim of mesne profits @ Rs. 200 per day as found in paragraph 3 of the plaint clearly shows that the plaintiff treated the defendant to be in unauthorised and illegal occupation after the efflux of time of the lease and therefore, the demand was for mesne profits at the H 500 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R. A aforesaid rate per day. That had no nexus with the rental of the premises. Turning to the cause of action paragraph 4 it is seen that it is also in general terms and refers to the situation after the expiry of 15th March, 1985 when the lease period was over. It states that the cause of action for recovery of possession arose within the territorial jurisdiction of the court B from that date and such cause of action continued subsequently thereafter. Consequently, paragraphs 3 and 4 of the plaint can be said to be equivocal and not necessarily confined to the breach of the covenant of the lease as mentioned in paragraph 2 of the plaint. They can as well support th_e case of the plaintiff for possession also C under general law of the land as recited in last lines of paragraph 2. So far as paragraph 5 regarding the court is concerned, it is now well settled that if the plaintiff seeks possession of the demise premises from the erstwhile tenant, court fee payable would not be on the market value of the suit property, but on the basis of the valuation of the premises computed on D the basis of 12 months rent as it would not be a suit simpliciter on title against a rank trespasser. Only in the latter type of suits that the market value would be the valuation for the purpose of court fees. Having seen the aforesaid relevant averments in the plaint, now it is time for us to consider the rival contentions pressed for our consideration E by learned senior counsel for both the parties. Shri Nariman, learned senior counsel appearing for the appellant vehemently contended that the phrase "arising from" or "arising out of" a contract as employed by Section 69 sub-section (2) of the Partnership Act is of wider import as compared to the term "arising under". In support of his contention, he invited our F attention to a decision of this court in Jagdish Chander Gupta v. Kajmia Tradw (India) Ltd., [1964] 8 SCR 50 at page 51. In the said case, this court was concerned with the question whether the application moved by an unregistered partnership firm under Section 8 sub-section (2) of the Indian Arbitration Act, 1940 for appointment of an arbitrator in the light of the arbitration agreement between the parties was covered by Section 69 G sub-section 3 of the Indian Partnership Act. In this connection this court observed that : "That since the arbitration clause formed a part of the agreement constituting the partnership it is obvious that the proceeding which is before the Court is to enforce a right which arises from a H RAPTAKOS BREIT AND CO. LTD. v. GANESH PROPERTY [S.B. MAJMUDAR, J.) 501 contract. Whether one views the contract between the parties as a A whole or one views only the arbitration clause it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the agreement of the parties." c B So far as the aforesaid decision is concerned, it has to be noted that when an application is moved under Section 8 sub-section (2) of the Arbitration Act for appointment of an arbitrator, such an application has necessarily to be based on the arbitration clause which is a part of the main contract between the parties. Such an application was, therefore, rightly held to be having a direct nexus with the main contract between the parties which covered the arbitration clause. In the facts of the present case, we fail to appreciate how this decision can be of any assistance to Shri Nariman. In the present suit by erstwhile landlord against the erstwhile tenant the claim for possession by itself has nothing to do with the contract of tenancy which had already come to an end more than a year back. For such claim there is no question of the source of right to possession being its erstwhile D contract which is dead and gone. It cannot necessarily be the foundation of the cause of action unless the plaint itself refers to such a cause of action arising out of the terms and conditions of the erstwhile contract which according to the plaint are still subsisting on the date of the suit. Thus, it cannot be generalised that in every case when on the expiry of period of lease the landlord seeks to recover possession from the erstwhile tenant such a suit must necessarily be said to be one for enforcement of right arising from the contract of tenancy with third party ex-tenant. On the other hand, Dr. Singhvi appearing for the respondent rightly contended placing reliance on a catena of decisions of this court that on expiry of the period of lease, the erstwhile tenant who continues in possession, in the absence of being a tenant holding over, has to be treated as tenant at sufferance whose right of occupation arises not from the erstwhile contract which is dead and gone but which may arise under the general law of the land particularly against forcibly re-entry by ex-landlord or under any statutory law protecting the possession of statutory tenants under the relevant rent Act if applicable. In this connection, Dr. Singhvi invited our G attention to a decision of this court in Ganga Dutt Murarka v. Kartik Chandra Das & Ors., [1961] 3 SCR 813. Shah, J., speaking for a three Judge Bench of this Court in the aforesaid decision held at page 819 of the Report that after the expiry of the lease if the erstwhile tenant continues in possession against the wish of the landlord he cannot be said to have H E F 502 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R. A continued in possession pursuant to a contract which is already non-exis tent. The following pertinent observations in this connection were pressed in service by Dr. Singh vi : B c D E " ...... Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by viltue of the protection gra11ted by the statute a11d not because of a11y right arising from the contract which is deter mi11ed. The statute protects his possession so long as the conditions which justify a lessor on obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdic tion by the court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not unless the statute provides otherwise, be conditioned." (Emphasis supplied) He also invited our attention to another decision of this Court in M. C. Chockalingam & Ors. v. V. Manickayasagam & Ors., [1974] 1 SCC 48, wherein Goswami, J, speaking for the Court considered the question F whether a contractual tenant after the termination of the tenancy can be said to be in lawful possession of the cinema theatre and would be entitled to renewal of cinema licence as per Rule 13 of the relevant rules. Consider ing the status of the erstwhile tenant on the expiry of the lease to be that of a person in wrongful possession, the following observations were made G in paragraph 16 of the Report : "16. Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108( q) of the H RAITAKOS BREIT AND CO. LIB. v. GANESJI PROPERTY (S.B. MAJMUDAR, J.] 503 Transfer of Property Act, on the determination of the lease, the A lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee's continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in term of his wrongful posses- sion. Under Section 5(1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public generally. Public interest is, therefore, also involved in granting or refusing a licence. That being the position, the expression 'lawful possession' in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of rule 13." B c Dr. Singhvi in this connection also vehemently relied upon the decision of this court in the case of R. V. Bhupal Prasad v. State of A.P. & Ors., [1995) D 5 SCC 698, wherein a two Judge bench of this Court, speaking through Ramaswamy, J., made the following pertinent observations in paragraph 8 of the Report : E "8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it, by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in posses- sion after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Ed.) at page 633, the position of tenancy at sufferance has been stated thus : A tenancy at sufferance is merely fiction to avoid • continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and mises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been G determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The Act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If H F 504 SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R. A B c D the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant con tinuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until that rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical." (Emphasis supplied)