'Reserved" Court No. - 4 Case :- WRIT - C No. - 20718 of 2010 Petitioner :- Nanhku & Ors. Respondent :- Brij Nath & Ors. Petitioner Counsel :- C.K. Parekh Respondent Counsel :- Raghvendra Sh. Srivastava Hon'ble Krishna Murari, J.
Heard Sri C. K. Parekh, learned counsel for the petitioners and Sri
Raghuvendra Shanker Srivastava, who has put in appearance on
behalf of respondent no. 1.
Undisputed facts, giving rise to the dispute, are as under.
Suit was filed by plaintiff-respondents for a decree of mandatory
injunction to direct the defendant-petitioners to hand over vacant
possession of the suit property and in the alternative relief of
eviction and possession was claimed on the allegations that house
shown by letters ‘E’, ‘F’, ‘G’ and ‘H’ in the plaint map belong to
defendants which was in a very dilapidated stage and since they
were not in a position to carry out repairs immediately hence the
plaintiff-respondent no. 1 permitted them to live in the building
shown by letters ‘A’, ‘B’, ‘C’ and ‘D’ in the plaint map as a licensee
with the condition that they will maintain the same and shall not
make any alteration and shall vacate the same within five years.
The defendant-petitioners contested the proceedings by filing
written statement. During the pendency of the proceedings, the
defendant-petitioners filed an application under Order VII Rule 11
read with Section 151 C. P. C. for rejection of the plaint. The
application was filed on the ground that since no notice under
Section 106 of the Transfer of Property Act was given which was
essential before filing of the suit for dispossession as such there
was no cause of action and the plaint was liable to be rejected
under Order VII Rule 11 C. P. C. Trial court vide order dated
25.8.2009 rejected the application. The defendant-petitioners went
up in revision which has also been dismissed. Aggrieved by the
said two orders, present petition has been filed.
It has been urged by the learned counsel for the petitioners that
since no notice under Section 106 of the Transfer of Property Act
was served before filing of the suit, there was no cause of action
and the plaint was liable to be rejected and both the courts below
committed material illegality in rejecting the application. It has
further been submitted that if the plaint was not liable to be
rejected under Order VII Rule 11 CPC since the suit could not
have been filed without serving a notice under Section 106 of the
Transfer of Property Act, the plaint ought to have been rejected
under Section 151 C. P. C. The next contention advanced on
behalf of the petitioners is that suit being vexatious and merit-less
and plaint not disclosing any clear right to sue, the court ought not
to have been misled by clever drafting creating an illusion of cause
of action and ought to have rejected the plaint.
In reply, it has been submitted that since the plaint was filed on the
allegations that defendant-petitioners were only licensee and for
revoking licence, no notice under Section 106 of Transfer of
Property Act is required as such the plaint was not liable to be
rejected on the ground that it does not disclose any cause of action.
It has further been submitted that since there is a specific provision
contained in Order VII Rule 11 prescribing conditions whereunder
plaint is liable to be rejected, the provision of Section 151 cannot
be invoked for rejection of the plaint.
I have considered the arguments advanced by the learned counsel
for the parties and perused the record.
A perusal of the allegations made in the plaint and in particular
paragraph 6 thereof go to show that suit was filed by the plaintiff-
respondents on the allegations that defendant-petitioners were
permitted to live in the suit property as licensee.
The question which arises for consideration is as to whether notice
under Section 106 of the Transfer of Property Act is required for
revocation of licence and whether suit for ejectment can be filed
against a licensee without notice under Section 106 of the Transfer
of Property Act.
Section 52 of the Indian Easements Act, 1882 defines license as
under :
“Where one person grants to another, or to a definite number of
other persons, a right to do, or continue to do, in or upon the
immovable the immovable property of the grantor, something
which would, in the absence of such right, be unlawful, and such
right does not amount to an easement or an interest in the property,
the right is called a license.”
Section 61 of the Indian Easements Act, 1882 prescribed that
revocation of a license may be express or implied which
necessarily means that it could be either by notice in writing or
even without notice impliedly from the acts of grantor. Section 62
of the Indian Easements Act further prescribes the condition that
when the license could be deemed to have been revoked. Relevant
sub-clause (c) of Section 62 of Indian Easements Act reads as
under:
“62. License when deemed revoked.- A license is deemed to be
revoked –
(a) ……………………….
(b)……………………….
(c) where it has been granted for a limited period, or
acquired on condition that it shall become void on the
performance or non-performance of a specified act, and the
period expires, or the condition is fulfilled.”
Section 63 of the Indian Easements Act further prescribes that
where a license is revoked, the licensee is entitled to a reasonable
time to leave the property affected thereby and to remove any
goods which he has been allowed to place on such property.
An analysis of the aforesaid provisions clearly go to show that no
notice is required to be given for revocation of a license and where
it is for a limited period, it is deemed to be revoked on the expiry
of the period.
Notice for termination of lease is contained under Chapter V of the
Transfer of Property Act pertaining to lease of immovable
property. It is, thus, clear that Section 106 of the Transfer of
Property Act is applicable in cases of lease and not licence.
Learned counsel for the petitioners has failed to point out any such
provisions either in the Transfer of Property Act or in the Indian
Easements Act, 1882 prescribing a notice for termination of a
license.
In view of the above, the first argument advanced by the learned
counsel for the petitioners is devoid of any force and not liable to
be accepted and both the courts below have committed no
illegality in rejecting the application filed by the defendant-
petitioners for rejection of the plaint for want of notice under
Section 106 of the Transfer of Property Act.
In so far as second argument is concerned that is also devoid of
any merits. It is very well settled that if there is express provision
covering a particular topic then provisions of Section 151 C. P. C.
cannot be revoked. Reference may be made to the judgment of the
Hon’ble Apex Court in the case of Ram Chandra & Sons Sugar
Mills (P) Ltd. Vs. Kanhaiya Lal Bhargava and others, A. I. R.
1966 SC 1899 and Vareed Jacob Vs. Sosamma Ghevarghese,
AIR 2004 SC 3992 wherein it has been held that inherent powers
can be exercised only in cases where circumstances do not fall
under any of the rules prescribed in the Code of Civil Procedure.
Since Order VII Rule 11 C. P. C. specifically provides for cases in
which the plaint could be rejected, the provisions of Section 151 C.
P. C. cannot be revoked for the said purpose.
In view of the aforesaid facts and discussions, since the suit was
filed on the allegation that defendant-petitioners were licensee for
a fixed term and have not vacated the suit property despite expiry
of the period of licence, no notice under Section 106 of the
Transfer of Property Act was required to be given before filing of
the suit and it cannot be said that plaint failed to disclose any cause
of action and was not liable to be rejected under Order VII Rule 11
C. P. C.. Both the courts below have rightly rejected the
application of the defendant-petitioners.
The third contention is also merit-less. A bare reading of the plaint
allegations go to show that suit is not vexatious and there is clear
right to sue.
From the above discussions, the impugned orders do not suffer
from any such infirmity and illegality and do not require any
interference.
The writ petition accordingly fails and stands dismissed in limine.
Order Date :- 19.7.2010
Dcs