ORDER
Krishna Ram Mahale v. Shobha Venkat Rao, Govt. of A.P. v. Gnaneshwar Rao, DB, Sadhu Ram v. Gram Panchayat, Pastana, Patil Exhibitors (Pvt.) Ltd. v. Bangalore City Corporation, D.B. ITC Ltd. v. New Kashmir Stores, 1998 (2) L.W. 483 DB Luganda v. Service Hotels, Ltd., 1969 (2) All. E.R. 692 Warder and Anr. v. Cooper, 1970(1) All. ER. 1112 Indian Cable Co. Ltd. v. Sumitra Chakraborty, Bhupatlal v. Bhanumati, Mathura Prasad v. Mohd. Umar Khan, DB Chajju Lal v. Ram Pal, Mohd. Ashraf Ahanger v. Ghulam Mohd. Shah, AIR 1982 J & K 11 DB Begum Hamid Ali Khan v. B.H. Saidi, Surinder Kumar v. Gian Chand, Premier Automobiles Ltd., Bombay v. Kabirunissa, , H.P. Corporation Ltd. v. R.P. Agarwalla & Bros. (P) Ltd., Land Acquisition Officer, Vijayawada v. Chigurupati Umamaheswara Rao Sakuntala Chakraborty v. Shiba Prosad Roy, M.N. Clubwala v. Fida Hussain Saheb,
Sekaran, T. v. The Managing Director, Thiruvalluvar Transport Corporation, Madras, 1994 (1) L.W 463
Sultana Begum v. Prem Chand Jain, 1997 (2) L.W. 521
Chellappa v. Commissioner, Tirunelveli Municipal Corporation, St. Isables Hospital v. A.V. Murugan,
1. The petitioner had filed five interlocutory applications pending the appeal filed by him against the dismissal of his suit for bare injunction in respect of his alleged rights in the Sathyam Theatre Complex. The five applications are, for interim injunction restraining the respondent from interfering with the petitioner’s peaceful possession of the restaurant and parking stands in the theatre complex (CMP No. 986 of 2000), interim direction to restore to the petitioner, the five restaurants and parking stands with all amenities in the three theatres in Sathyam theatre complex (CMP No. 987 of 2000), interim injunction restraining the respondent from commencing, or running any canteen and parking stands collecting parking charges (CMP No. 1026 of 2000), for receiving documents (CMP No. 1027 of 2000) and finally, another petition for receiving documents (CMP No. 1028 of 2000).
2. The petitioner’s case is that the respondent’s partnership concern leased out the restaurants and parking stands in the Sathyam Theatre Complex under the document dated 25.12.1973. The document sets down the understanding between the parties. The following were the areas leased out: (1) Main restaurant in Sathyam in the ground floor (2) Restaurant in the 1st floor at Sathyam (3) Restaurant in the ground floor at Sundaram, now known as Subam (4) Restaurant in the 1st floor at Sivam, now known as Santham (5) Restaurant in the 2nd floor at Sivam, now known as Santham, and (6) Parking lot. Proceedings before the Settlement Commissioner at New Delhi dated 31.5.1979 also support the arrangement. The petitioner had been carrying on business obtaining licenses therefor. From 1998, trouble started. The respondent refused to issue receipts for monthly payments and on 8.6.1998, a registered letter was issued by the respondent to the petitioner declaring their decision that they would henceforth run the restaurants and operate the parking lot themselves and the arrangement existing till date was discontinued. It was the petitioner’s case that what was paid till now and continued to be paid was only rent and not license fee as contended by, the respondent. The respondent also informed the petitioner that they were making arrangements to acquire all the equipments for running a canteen and therefore, the petitioner should remove his equipment. Apprehending that he would be removed from possession without due process of law, the petitioner filed O.S. No. 4806 of 1998. The respondent denied the averments in the plaint and insisted that the arrangement was only a license arrangement and that if it was a lease, it would have been a document that was registrable and maintained that the petitioner cannot claim to be in possession of any portion of the Sathyam theatre complex, the building or the parking area; since after the film show is over, the petitioner moves out of the property and it is the respondent’s security staff who lock the place. Therefore, at best, the petitioner was permitted to enter the suit property. So suit shall be dismissed.
3. The parties went to trial and the trial Court dismissed the suit holding that the agreement between the parties was only that of a licensor and licensee and that the petitioner herein was not entitled to a decree for injunction. Against that, A.S.226 of 2000 was filed in which the five interlocutory applications referred to above came to be filed.
4. According to the petitioner, he had obtained interim injunction pending disposal of the suit in I.A. No. 11206 of 1998. The respondent filed C.M.A. No. 139 of 1998 against that, which was dismissed. Therefore, he had injunction pending disposal of the suit. The suit came to be dismissed on 4.9.2000. On 5.9.2000, the petitioner moved I.A. No. 14677 of 2000 for interim injunction till he obtains certified copy of the decree and judgment. The trial Judge was pleased to grant an order of status-quo ex parte till 20.9.2000. Since this order was passed ex pane, the respondent moved CRP 2480 of 2000 and this Court had stayed the ex parte order and directed the Court below to dispose of I.A. No. 14677 of 2000 after hearing both the parties. Thereafter the petitioner filed the appeal. Upon the dismissal of the suit he was illegally dispossessed and so he sought for restoration of possession. All the applications were dismissed by the lower appellate Court and therefore, these five CRPs are filed.
5. Mr. T.P. Sankaran, learned counsel for the petitioner submitted that the order of the Court below is unsustainable. When the respondent has forcibly taken possession without due process of law, the possession should be restored and injunction also should be granted. He also submitted that the rejection of the application for reception of additional evidence was also contrary to settled principles of law. He relied on the following judgments:
1. DISPOSSESSION WITHOUT RECOURSE TO LAW – LICENCE – UNLAWFULLY OBTAINING POSSESSION – FORCIBLE DISPOSSESSION DEPRECATED
(a) Krishna Ram Mahale v. Shobha Venkat Rao,
(b) Govt. of A.P. v. Gnaneshwar Rao, DB – (Even a trespasser cannot be evicted by force)-
(c) Sadhu Ram v. Gram Panchayat, Pastana, – (Even in the case of an unauthorized occupant possession to be taken only in the manner authorized by law)-
(d) Patil Exhibitors (Pvt.) Ltd. v. Bangalore City Corporation, D.B. (moulding of relief-illegal dispossession)-:
2. TO RESTORE POSSESSION
(a) ITC Ltd. v. New Kashmir Stores, 1998 (2) L.W. 483 DB (Paragraphs 16,46,53)-
(b) Luganda v. Service Hotels, Ltd., 1969 (2) All. E.R. 692
(c)Warder and Anr. v. Cooper, 1970(1) All. ER. 1112
(d) Indian Cable Co. Ltd. v. Sumitra Chakraborty, (Mandatory injunction on interlocutory petition Order 39 Rules 1 and 2 CPC)
(e) Bhupatlal v. Bhanumati, (Defendant putting his own locks to godown before filing of Appeal) Court granted Mandatory injunction coupled with delivery of possession.
3. SUBSEQUENT EVENTS AND MOULDING OF RELIEF (ORDER 41 RULE 33 CPC)
(a)
(b) Mathura Prasad v. Mohd. Umar Khan, DB
(c) Chajju Lal v. Ram Pal,
(d) Mohd. Ashraf Ahanger v. Ghulam Mohd. Shah, AIR 1982 J & K 11 DB (Order 41 Rules 27 and 33 CPC) Additional evidence and subsequent events and moulding of reliefs) Decree of Lower Court does not give vested rights – Modify Decree, if it is inappropriate.
(e) Begum Hamid Ali Khan v. B.H. Saidi, (Order 41 Rules 27 and 33 CPC)
4. RECEPTION OF ADDITIONAL DOCUMENTARY EVIDENCE (Order 41 Rule 27 of the CPC)
(a) Surinder Kumar v. Gian Chand,
(b) Premier Automobiles Ltd., Bombay v. Kabirunissa,
(c) H.P. Corporation Ltd. v. R.P. Agarwalla & Bros. (P) Ltd., .
(d) Land Acquisition Officer, Vijayawada v. Chigurupati Umamaheswara Rao .
(e) Sakuntala Chakraborty v. Shiba Prosad Roy,
(f) R.B. Kapoor v. Manek N. Dastur,
6. Mr. P.S. Raman, learned counsel for the respondent on the other hand, submitted that there was no question of dispossession at all since the petitioner was never “in possession” he was only permitted to carry on certain activities in the Theatre Complex. Petitioner’s staff would come, sell the parking lot tickets during the show hours and go away. They would be in the theatre – areas during the show hours for selling soft-drinks and other refreshments and they would go out when the show was over. At no point of time had they been given any right to be in possession and they did not have the same. Once the suit for injunction was dismissed, the respondent was free to prevent the petitioner from entering the suit property since, after all, all these years he had only been permitted to enter. There cannot be any dispute regarding the ownership of the suit property. Merely because for a few hours, some persons
employed by the petitioner are permitted to issue parking tickets, they cannot claim to be in possession of the entire theatre complex. He also pointed out to the counter filed in the applications which are subject matter of these revisions wherein the respondent has stated that the car parking and the restaurants are being operated by the theatre management itself and they have not been sub-contracted to any third party. Therefore, even if the appeal is allowed, no third party interests will be urged or would have intervened and the appellate Court can always direct the respondents to put the petitioner back in operation of the canteen and the car park. He relied on the following judgments to show that the petitioner is not entitled to continue in possession:
1. M.N. Clubwala v. Fida Hussain Saheb,
2. Sekaran, T. v. The Managing Director, Thiruvalluvar Transport Corporation, Madras, 1994 (1) L.W 463
3. Sultana Begum v. Prem Chand Jain, 1997 (2) L.W. 521
4. Chellappa v. Commissioner, Tirunelveli Municipal Corporation, ,
5. St. Isables Hospital v. A.V. Murugan,
However, he straightaway conceded that CRPs 1289 and 1290 of 2001 ought to be allowed.
7. A perusal of the order of the Court below which is very brief, shows that the learned Judge had stated that the two CMPs 1027 and 1028 of 2000 against which the above revisions arise have been filed for reception of additional documents, and they can be looked into only at the time of disposal of the appeal. Having said that, he ought not to have dismissed those applications. Therefore, the order passed in CMPs No. 1027 of 2000 and 1028 of 2000 are set aside, CRPs 1289 and 1292 of 2001 are allowed.
8. As regards the other revisions, it is the petitioner’s case that his possession was that of a lessee. It is the respondent’s case that he was there only as a licensee. It is also the case of the respondent that the permission had been withdrawn. The trial Court had accepted the case of the respondent and dismissed the suit. The only question is whether the petitioner has made out a prima faice case that he is entitled to be in possession of the theatre complex. It is clear from a narration of events that the petitioner’s employees come to the theatre during show hours for regulating the parking area and for selling refreshments. It is the respondent’s case that when the suit was dismissed, from 5.9.2000, they started issuing parking tickets directly and also selling refreshments directly. Therefore, strictly speaking, the petitioner was not thrown out. The petitioner cannot continue the activities in the parking lot and in the canteens or restaurants as before since the respondent had taken over the task of issuing parking tickets and also vending refreshments.
9. In the decision reported in Krishna Ram Mahale v. Shobha Venkat Rao, , it was held thus;
” It is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.”. . .
“In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant 3 was not entitled to dispossess the plaintiff unlawfully land behind her back as has been done by him in the present case.”
10. In the decision reported in Govt. of A.P. v. Gnaneshwar Rao, , it was held thus:
” It is always better that a person is driven to a court of law than to permit him to forcibly evict a tenant. We hold the possession of Annapurnayya is juridical for he is a tenant by sufferance. The possession of such a tenant should be protected by the courts, in our country. In that view, the judgment and decree of the lower appellate Court is set aside. Annapurnayya is entitled to remain in possession of the demised premises till he is evicted in the course of law.”
11. In the decision reported in Sadhu Ram v. Gram Panchayat, Pastana, , it was held thus:
” The principles which govern the exercise of the discretion are that the party claiming ad interim injunction should establish that it has a prima faice case, that if it is not granted it is likely to suffer a great mischief and that interference by the Court is necessary to protect it from an irreparable injury. When relief of injunction is claimed against forcible dispossession from immovable property, the established principle of law is that the party in possession for a sufficient long time is entitled to retain it unless dispossessed in due course of law.”
12. In the decision reported in Krishna Ram Mahale v. Shobha Venkat Rao, 1984 (4) SCC 131, Govt. of A.P. v. Gnaneshwar Rao, , D.B., Sadhu Ram v. Gram Panchayat, Pastana, and Patil Exhibitors (Pvt.) Ltd. v. Bangalore City Corporation, , it was held that there cannot be any forcible dispossession of a person who is in lawful possession. In all the matters referred to above, the person who claimed to be dispossessed was in possession of the entire premises and not as in the instant case where the Trial Court held the petitioner is not in physical possession, but has his place of business, if you may call it that, in the theatre area and the entry point into the theatre is controlled by the respondent.
13. As regards restoration of possession, in the decision reported in ITC Ltd. v. New Kashmir Stores, 1998 (2) L.W.483, the I.T.C which was the appellant therein was the owner of Hotel Chola Sheraton and the respondent was New Kashmir stores, which was carrying on business at a
shop in a portion in the ground floor. The case of the appellant was that it was a licensee and the suit was filed by the respondent. Pending suit, interim injunction was sought for. Against this, the matter went up to Supreme Court. This is what the Division Bench held in that case:
” In the instant case, admittedly the plaintiff, is in possession of the premises for about 15 years. As indicated earlier, whether he is a licensee or lessee is to be decided by the trial Court after the evidence let in by looking into the surrounding, circumstances and the intention of the parties to decide about the relationship of the parties. Therefore, in our view, the defendant on the strength of the stray observation with reference to the right of the licensor made by the Apex Court, cannot take the law into its own hands by entering into the locked premises, in the name of exercise of re-entry, while the whole question is to be decided by the trial court only at the time of conclusion of the trial.”
The suit was still pending. The appellant had made it totally difficult for the respondent to carry on business by not only putting up a wall obstructing the respondent’s shop, but also cutting off the electricity. In the S.L.P arising out of this matter, the respondent was given the liberty to file the suit on the same cause of action through the competent plaintiff. It is between the time gap of dismissal of the S.L.P and the filing of the fresh suit that the appellant had exercised what was termed by the Division Bench as illegal re-entry. Without knowing all this, the respondent filed the suit for permanent injunction and the appellant claimed that in view of the re-entry, the suit itself had become infructuous. In that case however, the appellant offered another place to the respondent which the respondent rejected and though the Division Bench directed the appellant to keep the disputed area in the same condition as before, they did not consider it appropriate to direct the appellant to put back the respondent in possession of the premises since it became impractical due to subsequent events. The Division Bench specifically held that whether the respondent is a lessee or licensee should be decided in the suit.
14. In the decision reported in Luganda v. Service Hotels, Ltd., 1969 (2) All. E.R. 692, the lessee claimed that he was staying three years in a bed-sitting room in a hotel and it was held that the Rent Act, 1968 which is applicable there had given the occupant, security of tenure and therefore injunction was granted. It was held thus:
“The plaintiff was prima faice entitled to ‘the protection of the (Rent) Act of 1968 and the injunctions had been rightly made, because –
(i) a building used as a hotel was a house and the plaintiffs room was part of a house within Section 84(1) of the Act;
(ii) the plaintiff, having occupied the room for three years, was occupying it as a residence within Section 70(1) of the Act;
(iii) the plaintiff had exclusive occupation of the room under his contract within Section 70(2) of the Act;”
15. In Warder and Anr. v. Cooper, 1970 (1) All. E.R. 1112, a bungalow was given rent free to an employee of the company and interim injunction was granted to protect his possession. When he had gone on vacation, the employer locked the bungalow by changing the locks. His goods and furniture remained there. The employee asked for interim injunction to secure access to the bungalow and the same was granted. In that case, the Court relied on Section 32 (1) of the Rent Act, which relates to premises which have been let out as dwelling in respect of which the owner shall not recover possession except by proceedings in court. It was held thus:
” The first plaintiff was entitled to an interim injunction because –
(i) even if, as was prima facie the case, the first plaintiff had merely a licence, it was conceded that he had exclusive possession of the bungalow under the terms of his employment and accordingly by virtue of Section 32(2) of the Rent Act 1965 was to be deemed a tenant for the purpose of the prohibition on recovering possession otherwise than by court proceedings contained in Section 32(1)”
16. Indian Cable Co. Ltd. v. Sumitra Chakraborty, was relied on to show that interim mandatory injunction can be granted in deserving cases even if it results in granting the main relief in the suit. In that case also, the person who was dispossessed claimed protection of the Rent Act. Therein, it was held thus;
” Where the tenant had been in peaceful enjoyment of the suit premises as a tenant until certain date in a month when they were dispossessed and the tenant had paid the rent for the month in question in advance and thus it was obvious that on the date when the landlady took over possession of the suit premises she knew it very well that she had no right to do so during the continuance of the tenancy and in breach of the statutory protection under the Rent Act, and the tenant had been thrown out not only in breach of the provisions of the Rent Act, but also wrongfully and by abuse of process of criminal court at a point of time when the tenancy in his favour was still continuing the tenant was entitled to be restored to possession even on an interlocutory application.”
17. In Bhupatlal v. Bhanumati, , the plaintiff sued for declaration that she was a tenant and the injunction was dismissed. Between the period of dismissal of the suit and the filing of the appeal, the defendant put some of his articles and applied his own locks and staples across the door of the Godown which is the suit premises to prevent the plaintiffs entrance. In the first appeal filed there against, the District Judge found that the plaintiff was the tenant of the suit godown and therefore, granted mandatory injunction coupled with delivery of possession without there being any formal prayer. It was held thus:
” The first appellate court found that the plaintiff was the tenant of suit godown and that she and her predecessor were in possession of godown right from 1955. This being a finding of fact is binding in second appeal. The
plaintiff was in possession even during pendency of suit till the ad interim injunction stood vacated because of dismissal of suit by trial court. During the period when the injunction did not operate because of dismissal of suit and the filing of appeal, the defendant prevented plaintiff from entering godown by locking the door. An appeal is a continuation, of the suit. As the defendant is shrewd enough to-overreach the legal process, the court should put its foot down and see that this shrewdness does not stand rewarded. The court should restore the legal position which would have continued had the defendant not taken benefit of that intervening period. The first appellate court was correct in granting mandatory injunction coupled with delivery of possession without there being any formal prayer.”
18. In the decision reported in Mathura Prasad v. Mohd. Umar Khan, , it was held thus:
“An appeal is in the nature of a re-hearing of the suit and the appellate Court can take notice of a subsequent change in fact or and in law to grant or mould a relief in the light of facts and events which have come into existence since the decree appealed from was passed in order to do complete justice between the parties and to avoid unnecessary multiplicity of litigation.”
19. In the decision reported in Chajju Lal v. Ram Pal, , it was held thus:
” During the pendency of the suit, the defendant has already constructed the door at his own risk. However it is always open to a court to mould its decree in the light of subsequent events in order to shorten litigation.”
20. In the decision reported in Mohd. Ashraf Ahanger v. Ghulam Mohd. Shah, AIR 1982 J & K 11, it was held thus:
“But it is well settled that it is incumbent upon the court to take notice of events that have happened subsequent to the institution of the suit in order to give appropriate relief to the parties. Such an event may be either a subsequent change in law or even a happening of any other incident. A court can, and in fact is bound to lake notice of the subsequent events even at the stage of appeal. Once it is shown that by happening of a subsequent event the relief already granted to a party has become, inappropriate, the Court shall take notice of it and modify its decree accordingly.”
21. In the decision reported in Begum Hamid Ali Khan v. B.H. Saidi, , it was held thus:
” For taking into consideration subsequent events at the stage of appeal, it is not necessary formally to amend the pleading. The additional facts can be taken into consideration on basis of an application that may be made by a party and after affording opportunity to other side with regard to subsequent facts. The Tribunal gave fair opportunity to parties to substantiate their respective cases on subsequent facts.'”
22. Let us look at the decisions relied on by the learned counsel for the respondent:
(i) M.N. Clubwala v. Fida Hussain Saheb, deals with the question of distinction between lease and license. The Supreme Court held that a person who uses the stalls during a stated period everyday subject to several conditions, the possession should be continued only with the landlords and the stall-holders. It was held thus:
” In the case before us, however, while it is true that each stall-holder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11.00 p.m. at his pleasure. He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords is on the landlords would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall-holders. The right which the stallholders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stallholders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could in such circumstances the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word ‘rent’ was used loosely for ‘fee’.”
(ii) In Sekaran, T. v. The Managing Director, Thiruvalluvar Transport Corporation, Madras, 1994 (1) L.W.463, the Division Bench of this Court refused to grant injunction to the plaintiff against the owner of the property so that he may continue his possession until the disposal of the suit. In that case, the appellant before the Division Bench claimed to be in possession of the property on condition, he should run a hotel for the service to the passengers at the bus stop of the Tiruvalluvar Transport Corporation. The period of agreement had expired. He filed a suit. Pending suit, he asked for temporary injunction. The trial Court refused injunction. In that case, an argument was advanced that the Court should not lend its hand to forcibly dispossess a person in possession even though he is a licensee, especially when in that case when the final adjudication as to whether he was a lessee or licensee was yet to be decided. The Division Bench was not inclined to grant temporary
injunction since he had not made out a prima faice case that he was a lessee. The Division Bench, while referring to a decision of a Supreme Court where it was held that even a person who is in settled possession of property cannot be dispossessed by the owner except by recourse to law, held thus:
” No exception can be taken to the above proposition of law. But it is not a case of a person who has come to the court to protect his possession in the manner of Section 6 of the Specific Relief Act provides, but as we have prima faice found, it is a case of a licensee who has sought for an injunction against the owner of the property so that he may continue his possessions until the disposal of the suit. Kirshna Ram Mahale’s Case, is a case of licensee who had been forcibly dispossessed while the licence was ‘ still in force.”
“We are also satisfied that the appellant has not been able to make out a prima faice case that he is a lessee. He, in our opinion, is not entitled to any order of temporary injunction. The learned single Judge has committed – no error in dismissing his applications for the said purpose.”
(iii) In Sultana Begum v. Prem Chand Jain, 1997(2) L.W.521, the Supreme Court held thus:
” Tenant or lessee of the premises is a person in whose favour an interest in the specific immovable property is transferred, who therefore, comes to occupy the demised property exclusively in his own right. The right to exclusive possession is the basic feature of the tenancy created by lease. Lincensee’s possession, on the contrary, is only permissive and he can be thrown out at any time. He does not also get the right to exclusive possession.”
In that case, the appellant was the landlord of Pink City hotel which was in occupation of the respondent and of course, in that case, the respondent himself claimed that he was only a licensee.
(iv) In Chellappa v. Commissioner, Tirunelveli Municipal Corporation, , the petitioner had bid at the auction conducted by the Tirunelveli Municipal Corporation and he was allotted a place where he put up a room in which he could operate television sets installed by him in three platforms. The term expired and the Division Bench refused to grant injunction against the respondent’s right to hold auction in respect of that property. It was held thus:
” If a document gives only a right to use a property in a particular way under certain, terms while it remains in the possession and control of the owner thereof, it will be a licence. The legal possession thereof continues to be in the owner of the property but the licensee is permitted to make use of the premises for the particular period. But for the permission, his occupation would be unlawful and does not create in his favour any estate or interest in the property.”
(v) In St. Isables Hospital v. A.V. Murugan, , the petitioner hospital had entered into an arrangement with the respondent whereby
the respondent was given the authority to collect parking fee from those who park their vehicles in the petitioner’s property. Interim injunction was sought for restraining the petitioner hospital from interfering with the respondent’s peaceful possession and enjoyment of parking lot. The learned Judge held that arrangement for collecting parking fee is only a privilege or license and not lease.
23. In the decisions cited by the petitioner and the respondent, a) the subsequent reliefs have been taken note of and the relief appropriately moulded by the Court at the time of final disposal b) Where possession has been protected during the interlocutory stage, the Courts have been satisfied that a prima faice case had been made out and the person who claims to be in possession was in “settled possession”; or
(c) the person in possession was held to be a tenant entitled to protection of the tenancy laws; or
(d) factually, it appeared, that there was an area which was under the exclusive control of the person claiming to be in possession by locking the area and keeping others away. In these cases arising out of interlocutory order, prima faice case of “possession” has not been made out, in his plaint he has not claimed protection of the Rent Control Act, the properties in so-called possession do not appear to be under his exclusive control. So the decisions cited on behalf of the petitioner do not help him.
24. In the present case, as far as the parking lot is concerned, the petitioner has not made out a prima faice case that they are in possession of the parking lot to the exclusion of others. At best, the employees of the petitioner come there during the show hours to regulate the parking. Therefore, in this revision arising out of an interlocutory application, I am inclined to adopt the reasoning of the learned Judge in St. Isables Hospital v. A.V. Murugan, which was also a case where interim injunction was sought for claiming possession of a parking lot. The petitioner merely because he attends to the parking lot cannot claim to be in possession entitled to an interim order of injunction.
25. As far as the counters/canteens/restaurants, call them what you will, “here the petitioner sells refreshments, the petitioner has not satisfied the lower Court that he is in possession of the same. The “trial Court after a detailed consideration of the recitals of the document the parties held as follows:
26. From this, it is clear that the trial Court came to the conclusion that Ex.A-24, the document on which the petitioner bases his right, contains no recitals which show that the, petitioner was given exclusive possession of the suit property, and that at best, he was only permitted to carry on certain activities in the suit properties at stipulated hours by permission of the respondent. In fact, the trial Court has in particular referred to Clause 13 of Ex.A-24 relating to the petitioner’s right to assign catering and parking lot business to others. The trial Court concluded that this itself would show that no lease was created in respect of the property since the petitioner appears to have been only given the right to do those business whereas in the case of a tenant in possession, the right that he is able to transfer to a sub-lessee would be the right of possession. From this also, the trial Court has arrived at the conclusion that what was given to the petitioner was the permission to do certain activities and that the materials on record do not show that the right given to the petitioner was the right to be in possession and that he had not proved that he was in “settled possession” of the suit property.
27. In view of the categoric findings of the trial Court that the petitioner is not in possession of the suit property, I am unable to intervene at the interlocutory stage either to protect what the petitioner terms as possession or to restore what he claims to be dispossessed of. If, as stated earlier, the petitioner is able to satisfy the appellate Court that his presence in the suit property was only as a person in possession and not as a person who has merely been permitted to do certain activity, he would definitely be entitled to ask the appellate Court to mould the relief in view of what transpired on 5.9.2000 as held in Bhupatlal v. Bhanumati, .
28. The other decisions where restoration of possession was granted on the ground the person in occupation was entitled to protection under the Rent Act are not applicable to this case because though the appellant had raised a ground that his possession is entitled to be protected by virtue of the Tamil Nadu Buildings (Lease & Rent Control) Act, I do not find anything in the plaint to show that the petitioner had pleaded that he can be evicted only in accordance with the Tamil Nadu Buildings (Lease & Rent Control) Act. On the other hand, the decision reported in Sekaran, T. v. The Managing Director, Thiruvalluvar Transport Corporation, Madras, 1994 (1) L.W. 463 appears to me to be more on the point. That was also a case where the petitioner sought protection of his possession and claimed that he should not be forcibly dispossessed even if he is a licensee since if the final adjudication is not over. In this case, the trial Court had clearly found that he was only a licensee.
29. It is relevant to note that the petitioner has also sworn to an affidavit that in the event the petitioner succeeds in the appeal, he is willing to put him back in possession. The statement made in the counter by the respondent that no third party’s interest will be introduced either as parking stall owners or restaurant owners at any of the lobbies of the various theatres in the theatre complex is recorded as an undertaking.
30. From the typed set of papers filed before me, there is-a communication from the respondent calling upon the petitioner to take back the various articles listed in the inventory belonging to the petitioner.
Since it is represented by the learned counsel for the respondent that the appeal itself is ready for final disposal, I direct the respondent to keep these articles belonging to the petitioner as they are without disturbing them, pending appeal. With these observations, the C.R.Ps, 1288, 1290 and 1291 of 2001 are dismissed. C.R.Ps 1289 and 1292 of 2001 are allowed. The C.M.Ps. No. 1027 and 1028 of 2000 in A.S. No. 226 of 2000 shall be disposed of in accordance with law along with the appeal.
The learned first appellate Judge before whom the appeal is pending shall dispose of the appeal expeditiously.