R. C. MANKAD, J. ( 1 ) CAN the petitioner who by invoking ordinary civil jurisdiction of the Court had sought possession of the premises in occupation of the respondent alleging that the respondent was a mere licensee whose licence was terminated. ask the Court to decree his claim for possession in exercise of jurisdiction conferred upon it under sec. 28 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) on the basis relationship between it (petitioner) and the respondent was that of landlord and tenant governed by the provisions of the Act ? I am called upon to answer this question in this revision application in the background of the following facts. ( 2 ) ). Petitioner is a public limited Company. The respondent was in its employment and it is alleged that the respondent was given premises in one of the properties owned by the petitioner for his use and occupation as a licensee on account of his employment with the petitioner The respondent retired from service and the petitioner terminated the licence and called upon the respondent to hand over vacant possession of the premises in his occupation (herein after referred to as the suit premises) to the petitioner on or before January 31 1978 The respondent however failed to deliver possession of the suit premises to the petitioner. Petitioner therefore filed a suit being regular Civil Suit No. 348 of 1978 in Court of Civil Judge Senior Division at Nadiad for recovery of possession of the suit premises from the respondent and mesne profits. The defence of the respondent was that he was a tenant and not a licensee as alleged by the petitioner in the suit premises. In substance the respondents contention was that he was a tenant entitled to the protection under the Act and the petitioner was not entitled to recover possession of the suit premises from him except as provided under the Act. It was further contended by the respondent that since the petitioner had invoked the ordinary civil jurisdiction of the Court claiming possession of the suit premises on the ground of termination of the licence the Court had no jurisdiction to decree the petitioners claim for possession. ( 3 ) ). It was further contended by the respondent that since the petitioner had invoked the ordinary civil jurisdiction of the Court claiming possession of the suit premises on the ground of termination of the licence the Court had no jurisdiction to decree the petitioners claim for possession. ( 3 ) ). The learned trail Judge by her judgment and decree dated 31/12/1979 upheld the respondents contention that he was petitioners tenant in the suit premises. She however held that the petitioner was entitled to recover possession of the suit premises from the respondent under sec. 13 (1) (f) of the Act inasmuch as the suit premises were let out to the respondent for use as a residence by reason of his being in the employment of the petitioner and the respondent had ceased to be in such employment on his retirement from the petitioners service. Consequently the learned trail Judge decreed the petitioners suit. Feeling aggrieved by the decree passed by the learned trail Judge the respondent went in appeal before the District Court at Nadiad. The learned Extra Assistant Judge Nadiad who heard the appeal confirmed the finding of the learned trail Judge that the respondent was the petitioners tenant. He allowed the appeal and dismissed the petitioners suit holding that since the petitioner had failed to prove that the respondent was its licensee no relief could have been granted to the petitioner. In other words according to the learned Judge once it is held that the respondent is a tenant and not the licensee as claimed by the petitioner the case would be governed by the provisions of the Act and no decree could have been passed in the present suit which was filed on the ground that the respondent was petitioners licesee. Petitioner has preferred this revision application challenging the view taken by the learned Judge. ( 4 ) ). Mr. Arun H. Mehta learned Counsel for the petitioner did not challenge the finding recorded by the lower Courts that the respondent was the petitioners tenant. In other words he did not dispute that the agreement Exh. 27 which the petitioner had alleged to be a leave and licence agreement had created a lease in favour of the respondent Mr. Mr. Arun H. Mehta learned Counsel for the petitioner did not challenge the finding recorded by the lower Courts that the respondent was the petitioners tenant. In other words he did not dispute that the agreement Exh. 27 which the petitioner had alleged to be a leave and licence agreement had created a lease in favour of the respondent Mr. Mehta however submitted that the respondents suit cannot be dismissed merely because the respondent is held to be a tenant governed by the provisions of the Act and not a licensee as claimed by the petitioner. He submitted that the learned appellate Judge ought to have adjudicated the petitioners claim for possession in the light of the provisions of the Act. According to Mr. Mehta no question of jurisdiction of the trial Court would arise since the same court namely the Court of Civil Judge Senior Division at Nadiad was conferred jurisdiction under sec. 28 of the Act to determine the claim for possession under the provisions of the Act. Therefore submitted Mr. Mehta the trial Court had rightly decreed the petitioners suit in exercise of its power and jurisdiction under sec. 28 of the Act and the learned appellate Judge erred in not examining the petitioners claim for possession in the light of the provisions of the Act. ( 5 ) ). Mr. S. D. Patel learned Counsel for the respondent on the other hand urged that the trial Court could not have exercised jurisdiction under sec. 28 of the Act as the suit was not filed under the provisions of the Act. Mr. Patel submitted that the trial Court had entertained the suit of the petitioner in the exercised of its ordinary civil jurisdiction and not in exercise of the power or jurisdiction conferred upon it under sec. 28 of the Act and therefore when it came to the conclusion that the petitioner had failed to establish that the respondent was its licensee the only course open to the trial Court was to dismiss the petitioners suit. Mr. Patel submitted that it was never the case of the petitioner that the respondent was its tenant. The Court cannot grant relief to the petitioner on a case for which there was no foundation in the pleadings. In any case the Court cannot in exercise of its ordinary civil jurisdiction decree the petitioners claim under the provisions of the Act. Patel submitted that it was never the case of the petitioner that the respondent was its tenant. The Court cannot grant relief to the petitioner on a case for which there was no foundation in the pleadings. In any case the Court cannot in exercise of its ordinary civil jurisdiction decree the petitioners claim under the provisions of the Act. ( 6 ) ). In FIRM SRINIWAS RAM KUMAR V. MAHAVIR PRASAD AND OTHERS A. I. R. 1951 SUPREME COURT 177 the appellant plaintiff before the Supreme Court filed a suit for specific performance of contract of sale of a house. The defendants contended that they never agreed to sell their house. According to them they were in need of money and hence approached the plaintiff for a loan and the plaintiff advanced to them a sum of Rs. 30 0 carrying interest at 6 per cent per annum. It was entirely for facilitating payment of interest due on this loan and not in part performance of the contract of sale that the plaintiff was put in possession of the house. The learned trial Judge believed the case of the defendants that the plaintiff advanced a sum of Rs. 30 0 to the defendants but this was by way of a loan and not a part payment of the consideration money and dismissed the plaintiffs suit for specific performance but as the defendants admitted that they had taken an advance of Rs. 30 0 from the plaintiff a money decree was passed in favour of the plaintiff and against the defendants for this sum of Rs. 30 0 with interest at 6 per cent per annum from the date of suit till realisation. The plaintiff carried the matter in appeal before the High Court at Patna and the defendants also filed cross objections challenging the propriety of the money decree that was passed against him. The High Court agreed with the trial Judge in holding that the sum of Rs. 30 0 was advanced as a loan by the plaintiff to the defendants. However the High Court took the view that the money decree granted against the defendants was not warranted in law as no case of a loan was made by the plaintiff in the plaint and no relief was claimed on that basis. 30 0 was advanced as a loan by the plaintiff to the defendants. However the High Court took the view that the money decree granted against the defendants was not warranted in law as no case of a loan was made by the plaintiff in the plaint and no relief was claimed on that basis. Consequently the High Court dismissed the suit in its entirety and the decree for recovery of money that was made in favour of the plaintiff by the trial Court was set aside. It was against this decision of the High Court that the appeal was preferred before the Supreme Court by the plaintiff. The Supreme Court held that the decision of the trial Court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the trial Court. The Supreme Court observed: It is true that it was no part of the gifts case as made in the plaint that the sum of Rs. 30 0 was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question however arises whether in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case which the plaintiff could have made was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendants own plea cannot possibly be recorded with surprise by the latter and no question of producing evidence on these facts would arise also they were expressly admitted the defendant in his pleadings. In such circumstances when no injustice can possibly result to the defendant it may not be proper to drive the plaintiff to separate suit. ( 7 ) ). In the instant case the petitioner no doubt has not pleaded an alternative case to the effect that the respondents was its tenant. Petitioner sought to be recover possession of the suit premises on the ground that the respondent was its licensee and his licence to use and occupy the suit premises came to be terminated on his retirement from its service. It however cannot be gainsaid that the petitioner could in the alternative have pleaded that even if the relationship between it and the respondent was held to be that of a landlord and tenant governed by the provisions of the Act it was entitled to recover possession of the suit premises from the respondent under sec. 13 (1) (f) or any other relevant provision of the Act. As observed by the Supreme Court in Mahavir Prasads case (supra) the fact that such a prayer on the basis of relationship of landlord and tenant would have been inconsistent with the prayer for possession on the basis of relationship of lincensor and lincensee is not real material. A plaintiff may rely upon different grounds alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. A plaintiff may rely upon different grounds alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. As observed by the Supreme Court the question is whether in the absence of any such alternative case in the plaint it is open to the Court to give the plaintiff relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the otherside was not called upon or had an opportunity to meet but when the alternative case which the petitioner could have pleaded was not only admitted by the respondent in his written statement but was expressly put forward as an answer to the claim which the petitioner made in the suit there would be nothing improper in giving the petitioner a decree upon the case which the respondent himself makes. Petitioner could in the alternative have pleaded that the respondent was its tenant and prayed for possession of the suit premises on the ground that it was entitled to recover possession of the suit premises under the provisions of the Act. In the facts and circumstances of the case when no injustice can possibly result to the respondent it may not be. proper to drive petitioner to a separate suit. ( 8 ) ). The question however still remains whether the petitioner who had claimed possession of the suit premises by invoking ordinary civil jurisdiction of the Court can in the alternative plead that the respondent was its tenant and claim possession of the suit premises under the provisions of the Act. In other words the question is whether the Court whose ordinary civil jurisdiction is invoked can exercise jurisdi ction conferred upon it under sec. 28 of the Act and decree the petitioners claim for possession in the light of the provisions of the Act. In KHEMCHAND V. MAHAMMADBHAI 11 GUJ. L. R. 171 the Supreme Court rejected the contention that sec. 28 of the Acts sets up new set of Courts with special powers and jurisdiction. It was held that sec. 28 of the Act and decree the petitioners claim for possession in the light of the provisions of the Act. In KHEMCHAND V. MAHAMMADBHAI 11 GUJ. L. R. 171 the Supreme Court rejected the contention that sec. 28 of the Acts sets up new set of Courts with special powers and jurisdiction. It was held that sec. 28 merely confers upon the existing Courts exclusive jurisdiction in respect of the matters relating to the possession of the premises and recovery of rent and to determine the claims and questions arising under the Act. On the account it does not become a Special Court. It is Court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the Statute which governs it. The question which arose before the Supreme Court was whether the Court of Small Causes at Ahmedabad while exercising jurisdiction conferred upon it under sec. 28 of the Act was competent to issue distress warrant in exercise of power conferred by sec. 53 of the Presidency Small Cause Courts Acts 1882. It was in the context of this question that the Supreme Court as pointed out above held that sec. 28 does not set up new set of Courts with special powers and jurisdiction but merely confers upon the existing Court an exclusive jurisdiction in respect of matters relating to possession of premises etc. and questions arising under the Act. The Supreme Court held that the Court of Small Causes at Ahmedabad had therefore power to issue distress warrant and that power could be exercised even in respects of the suits and proceedings which were exclusively triable by it by virtue of the provisions of the Act. Applying the ratio of the decision of the Supreme Court in Khemchands case (supra) there is no doubt that the trial Court was competent to pass appropriate orders in exercise of the powers and jurisdiction conferred upon it under sec. 28 of the Act even in respect of the suits and proceeding which it was seized in exercise of its ordinary civil jurisdiction. In other words the trial Court while exercising its ordinary civil jurisdiction could exercise powers conferred upon it under sec. 28 of the Act. There are no two different Courts operating in different fields. 28 of the Act even in respect of the suits and proceeding which it was seized in exercise of its ordinary civil jurisdiction. In other words the trial Court while exercising its ordinary civil jurisdiction could exercise powers conferred upon it under sec. 28 of the Act. There are no two different Courts operating in different fields. It is the same Court which is conferred jurisdiction to exercise ordinary civil jurisdiction and the jurisdiction under sec. 28 of the Act. Since the same Court was exercising ordinary civil jurisdiction and the jurisdiction under sec. 28 of the Act the petitioner could have pleaded an alternative case that the respondent was its tenant and prayed for recovery of possession of the suit premises on any ground available to it under the provisions of the Act. There is nothing in law which precludes the petitioner from raising such an alternative plea and seeking assistance of the Court for grant of the relief in exercise of the powers and jurisdiction conferred upon it under sec. 28 of the Act. ( 9 ) ). The view which I am inclined to take derives support from a decision of this Court in NARAYANPRASAD HARIBHAI MAJMUDAR and ANR. V. MARUBHAI RAYABHAI and ANR. 8 GUJ. L. R. 897. In that case the question which came up for consideration before the Court was whether the Agricultural Lands Tribunal constituted under the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act) had jurisdiction to determine the question whether a person is a tenant or not. Jurisdiction of the Agricultural Lands Tribunal to determine that question was excluded by necessary implication by sec. 70 (b) of the Tenancy Act but the notification dated 9/07/1960 made a vital difference in the position and by reason of the notification the Agricultural Lands Tribunal was invested with jurisdiction to determine the above question The notification conferred power on the Agricultural Lands Tribunal to discharge the functions of a Mamlatdar within the area over which it had jurisdiction. After the issue of the notifications the Agricultural Lands Tribunal was clothed with the powers of the Mamlatdar on the Agricultural Lands Tribunal had jurisdiction to decide all questions which could be decided by the Mamlatdar including the question whether a person is a tenant or a protected tenant or a permanent tenant under sec. After the issue of the notifications the Agricultural Lands Tribunal was clothed with the powers of the Mamlatdar on the Agricultural Lands Tribunal had jurisdiction to decide all questions which could be decided by the Mamlatdar including the question whether a person is a tenant or a protected tenant or a permanent tenant under sec. 70 (b) of the Tenancy Act. It was held by this Court that the Agricultural Lands Tribunal had jurisdiction to decide whether a person is a protected tenant or a permanent tenant when such a question arises in a proceeding under sec. 32-G of the Tenancy Act and an application under sec. 71 of the said Act was not necessary for determination of that question. In other words when the same authority was exercising powers and functions of the Agricultural Lands Tribunal and the Mamlatdar and a question which was required to be decided by the Mamlatdar arose before it in a proceedings pending before it as Agricultural Lands Tribunal it was competent for it to decide such a question. A fortiori the Court entertaining a suit in exercise of its ordinary civil jurisdictions can determine questions arising under the Act if it is conferred with jurisdiction to deal with and determine the questions arising under the Act. ( 10 ) ). Mr. S. D. Patel learned Counsel for the respondent however strongly relied on a decision of the Supreme Court in TOPANDAS V. M/s GORAKHRAM GOKALCHAND A. I. R. 1964 S. C. 1348 and urged that if a plaintiff frames his suit in a manner not warranted by facts and goes for his relief to a Court which cannot grant him relief on the true facts he will have his suit dismissed. The petitioner in the instant case came to the Court and sought relief on the ground that the respondent was a licensee and he had become liable to hand over possession of the suit premises as his licence was terminated. It was on account of the allegations made in the plaint that the petitioner had instituted the suit in the trial Court in exercise of its ordinary civil jurisdiction. Mr. Patel submitted that the petitioner can succeed only if it establishes the facts on the basis on which it approached the Court for the relief. If it fails to establish these facts it must fail and its suit deserved to be dismissed. Mr. Patel submitted that the petitioner can succeed only if it establishes the facts on the basis on which it approached the Court for the relief. If it fails to establish these facts it must fail and its suit deserved to be dismissed. It cannot take shelter under the defence of the respondent and pray for relief of possession contending that even if the respondent was a tenant governed by the provisions of the Act it was entitled to claim possession from him. According to Mr. Patel a suit which is essentially one between the landlord and tenant does not cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way a suit which is not between the landlord and tenant and in which judging by the plaint no claim or question arises out of the Rent Act or any of its provisions does not become a suit covered by the provisions of sec. 28 of the Act as soon as the defendant raises a contention that he is a tenant. Therefore according to Mr. Patel in order to be entitled to a decree for possession it was incumbent upon the petitioner to prove the case set up in the plaint and if it fails to do so as held by the learned appellate Judge its suit deserved to be dismissed. T am afraid the ratio of the decision of the Supreme Court in Topandas case does not advance the respondents case any further. The question before the Supreme Court in that case was entirely different. T am afraid the ratio of the decision of the Supreme Court in Topandas case does not advance the respondents case any further. The question before the Supreme Court in that case was entirely different. In that case the respondent before the Supreme Court had instituted a suit in the Bombay City Civil Court in which it appears to have asked (i) for a declaration that it was in lawful possession of a shop in Mulji Jetha Market: and that the appellants or their family members servants or agents had no right to enter into or remain in possession of the said shop: (ii) for an injunction restraining the appellants their family members servants and agents from entering into the said shop; and (iii) for an amount of commission payable to it under an agreement dated 23/06/1955 The plaint proceeded on the footing that during the period of the agreement the appellants were mere licensees and after expiry of the agreement they were trespassers and had no right to be in the shop. Plaint in terms negatived any relationship of landlord and tenant between the parties to the suit. The substantial defence of the appellants was that the respondent had sublet the shop to the appellants at a monthly rent of Rs. 500. 00. In other words according to the appellants the true relationship between the parties was that of a landlord and tenant. On these averments in the written statement the appellants took the plea that the question involved in suit related to the possession of the premises as between the landlord and his tenant and the Court of Small Causes Bombay alone had the jurisdiction to try the suit. The Supreme Court upholding the decision of the High Court held that in order to decide whether a suit comes within the purview of sec. 28 of the Act what must be considered is what the suit as framed in substance is and what the relief claimed therein is. If the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of claim which arises out of the Act or any of its provisions that only and not otherwise will it be covered by sec. 28. If the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of claim which arises out of the Act or any of its provisions that only and not otherwise will it be covered by sec. 28. It was in that context that the Supreme Court approved the following observations of the High Court:"a suit which is essentially one between the landlord and tenant does not cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way a suit which is not between the landlord and tenant and in which judging by the plaint no claim or question arises out of the Rent Act or any of its provisions does not become a suit covered by the provisions of sec. 28 of the Act as soon as the defendant raises a contention that he is a tenant. " The Supreme Court therefore held that in view of the averments made and relief claimed in the plaint the City Civil Court had jurisdiction to entertain the suit. The Supreme Court has no doubt observed in its decision that if a plaintiff frames his suit in a manner not warranted by facts and goes for his relief to a Court which cannot grant him relief on the true facts he will have his suit dismissed. But I am unable to see how these observations can be of any assistance to the respondent. On the contrary these observations indicate that if the plaintiff has gone for his relief to the Court which could grant him relief on the true facts he could be granted relief. In the instant case the petitioner approached the Court which exercises both ordinary civil jurisdiction and jurisdiction conferred on it under sec. 28 of the Act. Consequently if on the true facts the petitioner is entitled to a relief of possession under the provisions of the Act the Court would be competent to grant such relief in exercise of its jurisdiction under sec. 28 of the Act. ( 11 ) ). The next judgment on which Mr. Patel relied was decision of M. C. Trivedi J. in Second Appeal No. 282 of 1972 decided on 23/09/1977 Relying on this decision Mr. Patel urged that even if the Court exercising ordinary civil jurisdiction is invested with jurisdiction under sec. 28 of the Act. ( 11 ) ). The next judgment on which Mr. Patel relied was decision of M. C. Trivedi J. in Second Appeal No. 282 of 1972 decided on 23/09/1977 Relying on this decision Mr. Patel urged that even if the Court exercising ordinary civil jurisdiction is invested with jurisdiction under sec. 28 of the Act the suit instituted in the Court in exercise of its ordinary civil jurisdiction cannot be disposed of by that Court in exercise of its jurisdiction under sec. 28 of the Act. It was urged that if the ratio of the decision of M. C. Trivedi J. is applied to the facts of the instant case the plaint should be order to be returned to the petitioner for presentation to the Court in exercise of its jurisdiction under sec. 28 of the Act. The decision of M. C. Trivedi J. undoubtedly supports the view canvassed by Mr. Patel but I find that the attention of M. C. Trivedi J was not drawn to the decision of the Supreme Court in Khemchands case (supra ). In my opinion the view taken by M. C. Trivedi J. that there were two Courtsone exercising ordinary civil jurisdiction and another exercising jurisdiction under sec. 28 of the Act though presided over by the same Judge with respect does not seem to be correct. As held by the Supreme Court sec. 28 merely confers upon the existing Courts exclusive jurisdiction in respect of the matters relating to possession of the premises and recovery of rent and to determine the claims and questions arising under the Act. I therefore find myself unable to agree with the view taken by M. C. Trivedi J. Since the question is directly covered by the decision of the Supreme Court. I do not see any reason to a make reference to a larger Bench as suggested by Mr. Patel. ( 12 ) ). It was open to the petitioner to plead an alternative case that the respondent was its tenant and it was entitled to recover possession of the suit premises from him under the provisions of the Act. I do not see any reason to a make reference to a larger Bench as suggested by Mr. Patel. ( 12 ) ). It was open to the petitioner to plead an alternative case that the respondent was its tenant and it was entitled to recover possession of the suit premises from him under the provisions of the Act. As in the case of Mahavir Prasad (supra) alternative case which the petitioner could have made was not only admitted by the respondent in his written statement but was expressly put forth as an answer to the claim which the petitioner made in the suit. Therefore there would be nothing improper in giving petitioner a decree upon the case which the respondent himself makes. When no injustice can possibly result to the respondent there is no point in driving the petitioner to a separate suit. ( 13 ) ). In the light of the above discussion it must be held that the petitioner is entitled to claim a decree for possession if he is so entitled under sec. 13 (1) (f) or any other relevant provisions of the Act. The learned Appellate Judge has therefore committed grave error of law in non-suiting the petitioner on the ground that it has failed to prove the facts stated in the plaint on the basis of which it had sought the relief of possession of the suit premises. The learned appellate Judge ought to have adjudicated the petitioners claim for possession of the suit premises in the light of the provisions of the Act. I however find that the learned appellate Judge has not considered the petitioners claim for possession on merits under the provisions of the Act. Therefore the proper course to adopt is to send the matter back to the learned appellate Judge for redeciding the claim of the petitioner for possession of the suit premises in accordance with the provisions of the Act. ( 14 ) ). In the result this revision application is allowed. The judgment and order passed by the Learned Extra Assistant Judge Nadiad dismissing the petitioner suit are set aside and the matter is remanded to the Appellate Court for fresh disposal in accordance with law in the light of the observations made above. ( 15 ) ). Rule made absolute with no order as to costs. .