IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1137 of 2008()
1. M.SANKARANARAYANAN, AGED 62
... Petitioner
Vs
1. S.A.MOHAMMED NOOR, AGED 70 YEARS,
... Respondent
2. A.RAHMATHULLA, S/O.K.N.S.ABDUL RAHMAN,
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :27/11/2008
O R D E R
V. RAMKUMAR, J.
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R.S.A.No.1137 of 2008
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Dated this the 27th day of November, 2008
ORDER
The defendant in O.S.No.320 of 2006 on the file of the
Additional Munsiff’s Court-I, Kozhikode is the appellant in this
second appeal. The said suit instituted by the respondent herein
was one for a mandatory injunction directing the defendant to
remove all the articles from the plaint schedule bunk and for a
prohibitory injunction restraining him from entering the said
bunk thereafter. At the stage of trial the plaintiffs did not press
for the relief of prohibitory injunction.
2. The case of the plaintiffs can be summarised as follows:-
The plaint schedule bunk, made of iron sheets and having a
measurement of 8×8 feet, has been installed at the front portion
of the ground floor of a commercial building by name ‘City Gate’
belonging to the plaintiffs. The bunk along with the remaining
portion of the property also belongs to the plaintiffs. The
defendant approached the plaintiffs with a request to grant a
licence in his favour temporarily for the use of the plaint
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schedule bunk. Accordingly, as per Ext.A1 licence agreement
dated 1.10.2000, the defendant was permitted to use the bunk as
a licensee for a period of one year. After the expiry of the term
of one year the defendant again requested the plaintiff to grant
a fresh licence for a further period of one year. Accordingly,
Ext.A3 licence agreement dated 1.10.2001 was executed
between the plaintiffs and the defendant fixing a licence fee of
Rs.1,000/- per month. The defendant also paid a security deposit
of Rs.40,000/-. At the request of the defendant, he was
permitted to use one electric bulb in the bunk for which
connection had been taken from a plug point in the main
building. In violation of the agreement, the defendant by
prevailing upon some of the officials of the KSEB had managed
to get electricity supply in his name to the bunk. This was in
violation of the provisions in the licence agreement and without
the knowledge of the plaintiffs. As per the provisions of the
agreement of licence if the defendant failed to pay licence fee on
the due date the plaintiffs are entitled to terminate the licence
agreement notwithstanding the period stipulated in the licence
agreement. The defendant had failed to pay the licence fee from
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the month of October 2001 onwards. Accordingly, a lawyer
notice dated 1.1.2002 was sent to the defendant terminating the
licence. The suit has been filed thereafter.
3. The suit was resisted by the defendant contending inter
alia as follows:-
This defendant wanted a permanent place to set up a small
business in sales of snacks, cool drinks, milma milk and fruits.
Accordingly this defendant approached the plaintiffs who
entrusted the site to this defendant. Since the intention of this
defendant was to start a business on a permanent basis, the
entrustment was treated as a lease. This defendant paid rent of
Rs.750/- per month during the first year. The amount was
enhanced to Rs.1,000/- during the second year. The building tax
was also paid by this defendant. The electric connection to the
bunk was arranged from the main building by looping. Since it
was illegal, the KSEB disconnected the line. As it was practically
impossible for this defendant to carry on his business without
electricity, he obtained an electric connection with the
permission of the plaintiffs. It was not in violation of the licence
agreement between the parties. This defendant has not kept the
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rent in arrears. When the rent for the month of October was
tendered the first plaintiff refused to accept the same.
Consequently, rent for the months of October, November and
December was remitted by Demand Draft. The plaintiffs refused
to accept the Demand Draft and returned the same to this
defendant. There is no violation of any stipulation contained in
the agreement. The Calicut Corporation had issued a notice
asking this defendant to remove the bunk stating that it was
constructed without a licence. This defendant is willing to
transfer the electric connection in the name of the plaintiffs.
Acting upon the entrustment, which amounts to lease and which
was treated as such, intended, desired and understood by the
parties this defendant had incurred an expenditure of more than
Rs.1 lakh for furnishing the bunk. Since this defendant is a
tenant he is entitled to get the protection of the Kerala Building
(Lease and Rent Control Act , 1965. This suit is therefore not
maintainable and the same may be dismissed.
4. The trial court framed the following issues for trial:-
1. Whether the transaction is lease or licence?
2. Whether the plaintiffs are entitled for decree
for mandatory injunction as prayed ?
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3. Whether the plaintiffs are entitled for a
decree for permanent prohibitory injunction as
prayed?
4. Whether the plaintiffs are entitled for arrears
of licence fee as prayed?
5. Whether plaintiffs are entitled for decree for
damages for user and occupation?
6. Relief and cost?
Since the relief of prohibitory injunction was not pressed,
issue No.3 was struck off.
5. On the side of the plaintiffs Exts.A1 and A6 were marked
and 1st plaintiff was examined as PW1. On the side of the
defendant Ext.B1 to B10 were marked and the defendant was
examined as DW1.
6. The learned Munsiff after trial as per judgment and
decree dated 28.7.06 came to the conclusion that Exts. A 1 to A3
were agreements of licence and not lease and that in the
absence of a plea by the defendant in the written statement that
Exts.A1 to A3 were camouflage with a view to get over the
provisions of the Rent Control Act, it was not open to the
defendant to raise such a contention, that the defendant had
kept the licence fee in arrears to the tune of Rs.325/-, that the
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defendant was liable to pay damages for user and occupation at
the rate of Rs.1,000/- per month from 1.2.02 till he vacated the
premises and that the plaintiffs could adjust the arrears of
licence fee and damages from the security deposit of Rs.40,000/-
and balance, if any, shall be refunded to the defendant before
the plaintiffs took possession of the plaint schedule room. The
plaintiffs were also held entitled to costs.
7. On appeal preferred by the defendant as A.S.No.143 of
2006 before the Sub Court, Kozhikode, the learned Subordinate
Judge as per the decree and judgment dated 29.7.08 dismissed
the appeal confirming the decree and judgment passed by the
trial court. Hence this second appeal.
8. The following are the substantial questions of law
formulated in the memorandum of second appeal.
A) Were the courts below justified not considering the
question of intention of parties which was a jurisdictional
aspect as the very maintainability of the suit was
dependant on that?
B) Were the Courts below justified in relying on the mere
nomenclature of the document of entrustment when the
conduct of the parties before and after the entrustment
clearly proved a case of lease and not a licence.?
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C) Were the courts below justified in holding that the
pleadings were insufficient when it was specifically
pleased at paragraphs 2 and 7 of the written statement
that the transaction was lease and the intention of the
parties was to create a lease?
D) Whether the Courts below justified in not considering the
fact that in any view of the matter the appellant was
entitled to the benefit of Section 60(b) of the Easement
Act?
E) Were the courts below justified in not considering the
important aspects like exclusive possession of the
appellant and the facts that he had obtained electricity
connection, paid advance amounting to 3 years’ rent
clauses for renewal, increase in rent and the conduct of
parties before and after the entrustment?
F) Were the courts below justified in not holding that the
intention in the instant case was to create a lease and not
a licence?
9. I heard the learned counsel for the appellant-defendant.
The learned counsel for the appellant made the following
submissions before me in support of the appeal:-
Eventhough Exts.A1 and A3 were styled as licence dees the
real intention of the parties was to enter into a transaction of
lease. There was a transfer of interest in favour of the appellant
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who was put in exclusive possession of the bunk in question.
Infact, the bunk in the present form was constructed by him and
not by the plaintiffs. The defendant had obtained a separate
electric connection to the bunk. The plea in the written
statement to the effect that the entrustment which amounts to
lease and which was treated as such, intended, desired and
understood by the parties is sufficient to make out a case that
the transaction was a camouflage to get over the provisions of
the Kerala Building (Lease and Rent Control) Act. Hence the
decision of the Apex Court in (AIR 2004 SC 2103) C.M.Beena
and another v. P.N.Ramachandra Rao applies on all fourts to
the facts of this case. Since it was the appellant who put up the
bunk which is of a permanent nature, he is entitled to the
protection of Section 60(b) of the Easements Act.
10. I am afraid that I cannot agree with the above
submissions. A perusal of Exts.A1 and A3 documents will clearly
reveal that they are agreements creating a licence by all
definitions. The document recites that the licensors are the
owners in possession of the iron bunk described in the Schedule
and the licensee (the defendant) is permitted to use the premises
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for doing a business in bakery items and the licensee is not to
use the premises for any other purpose without the written
consent of the licensor. It is made explicitly clear that no
possession has been given to the licensee. Clause 7 of the
document makes the position further clear that the licensee is to
use the premises as a licensee and that the parties have never
intended the transaction to be a lease or any other mode of
transfer of interest or of possession of the premises. Apart from
the nomenclature of the document the terms and conditions
stipulated thereunder also unequivocally indicate that the
transaction which the parties had in their contemplation was a
licence is pure and simple.
11. Both the courts below have rightly held that the
defendant/appellant did not specifically plead in the written
statement that eventhough Ext.A1 is styled as a licence it was a
camouflage or a subterfuge conceived by the plaintiff to
circumvent the provisions of the Kerala Building (Lease and
Rent Control) Act, 1965. Hence reliance placed on the decision
of the Apex Court in (AIR 2004 SC 2103) C.M.Beena and
another v. P.N.Ramachandra Rao is of no avail to the
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appellant . Paragraph 4 of the said decision clearly shows that
the written statement in that case had specifically pleaded that
the document was a camouflage for evading the Rent Control
legislation which was in force.
12. Equally misconceived is the contention based on
Section 60(b) of the Easements Act. First of all, Ext.A1 licence
itself shows that what is given on licence is the bunk and not the
site thereof. The bunk was not put up by the defendant.
Secondly, no plea was taken in the written statement with regard
to the protection under Section 60(b) of the Easements Act (See
Kesavan Nair v. Narayanan Nair (1988(2) KLT 1006) and
Saraswathi v.Bharat Textiles (1992(1)KLT 863). Hence the
said contention is not available to the appellant. Such being the
position I do not see any good ground to interfere with the
concurrent decrees passed by the courts below. No question of
law, much less any substantial question of law arises for
consideration in this second appeal. The questions of law
formulated in the memorandum of appeal also do not arise for
consideration in this second appeal which is accordingly
dismissed in limine.
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The learned counsel for the appellant made a fervent
request for time. I am inclined to grant six months’ time to the
appellant. Accordingly the appellant shall remove all his articles
from the plaint schedule bunk and surrender the vacant
possession of the same on or before 26.5.2009 on condition that
he files an affidavit before the Executing Court within two weeks
from today undertaking to abide by the above condition and also
undertaking that he shall not induct strangers in the bunk nor
shall he commit any act of waste thereon and shall pay the
damages for use and occupation at the rate of Rs.1,000/- per
month without fail.
Dated this the 27th day of November, 2008.
V. RAMKUMAR, JUDGE
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