C.R.No.6417 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.6417 of 2009
Date of Decision 18.11.2009
Rajesh Kumar
........ Petitioner
Versus
Christian Medical College, Ludhaina & others
........ Respondents
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
Present: Mr.R.P.Kansal, Advocate,
for the petitioner.
HEMANT GUPTA, J.
The challenge in the present revision is to the order passed by
learned trial court on 14.11.2008 and order passed by the first appellate
court on 3.10.2009, whereby an application filed by the petitioner for grant
of ad-interim injunction was dismissed.
The plaintiff-petitioner filed a suit of permanent injunction for
restraining the defendants from interfering in his peaceful possession of
one shop situated near Gate No.3 of the campus of the defendant Christian
Medical College. It is the case of the petitioner that he was a tenant in the
shop in pursuance of a oral tenancy. Subsequently the Memorandum of
Terms of Lease was reduced into writing on 6.1.2001. In terms of the
conditions of lease, the petitioner is a tenant and, therefore, he cannot be
dispossessed from the shop in dispute, except in terms of proceedings
initiated under the East Punjab Urban Rent Restriction Act, 1949 (for short
“the Act”) and on the grounds available to the defendants under the
aforesaid Act.
The defendants on the other hand took up a stand that the
C.R.No.6417 of 2009 -2-
plaintiff is a licencee and such licence stands terminated with effect from
30.9.2008. It was also averred that memorandum of terms of lease
produced by the plaintiff shows that his possession was that of a licencee
and not as a tenant.
Both the courts have returned a finding that the possession of
the plaintiff was that of a licencee. Reliance is placed upon clauses 9, 11
and 14 of the terms of memorandum wherein the property has been given
to the plaintiff for running of a Provisional Store for the benefit of the
employees of the defendant. The licence fee was to increase 10% of every
year and in case of requirement, the plaintiff had to accept alternative site
which may or may not be of the same dimensions.
Leaned counsel for the petitioner has relied upon a Supreme
Court judgment reported as Chandy Varghese & others Vs. K.Abdul
Khader & others and of Delhi High Court reported as Kedari Singh Vs.
Delhi Cloth and General Mills Co. Ltd., 1997 (1) RCR, 587 to contend
that whether such document creates licence or lease, the test of
determining the nature of possession, is that the substance of the
document must be preferred to the form. Real test is the intention of the
parties whether they intended to create a lease or a licence. If the
document creates interest in the property, it is a lease, but, if it only permits
another to make use of the property, of which the legal possession
continues with the owner, it is licence and if under the document a party
gets exclusive possession of the property, prima facie, he is considered to
be a tenant but circumstances may be established which negatives the
intention to create a lease. Relying upon the aforesaid judgments, it is
contended that since the plaintiff was in the exclusive possession of the
shop and that he opens and locks up the shop, therefore, the possession
of the plaintiff is that of a tenant alone.
There is no dispute with regard to the proposition laid down in
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the judgments referred to by the petitioner. Infact the primary test to be
taken into consideration is whether a document is a licence or lease, is that
the substance of the document must be preferred to the form. As per the
petitioner, the document or the lease was oral and subsequently the
memorandum of terms has been reduced into writing. A perusal of the
document Annexure P-3 shows that the word licence and lease has been
used loosely and inter-changeable. Clause-1 recites that the monthly
licence fee shall be Rs.2000/- for a period of five years and this can be
renewed if desired by the party of the first part. The purpose of lease was
said to be a running of a grocery and allied needs provision shop only.
Clauses-9 and 14 of the memorandum of terms of lease which are
material, read as under:
“9. That the party of the second part will abide by all Rules
and Regulations laid by C.M.C. Ludhiana for running a
provision store for the benefit of their employees, a copy
of which has been received by the party of the second
part.
14. The party of the second party agreed to accept another
alternative premises, should there be a need by the
party of the first part to use the property of the demised
premises for construction of another building. The party
of the second party agreed to accept and alternative site
which may or may not be of the same dimensions as the
demised premisses.”
The respondent is a medical college having large number of
employees. Therefore, giving a shop to the plaintiff for the benefit of his
employees does not create any interest in the property. The plaintiff was
given right to use the shop for the benefit of the employees of the
respondents. No interest is created by any such document which is
C.R.No.6417 of 2009 -4-
evident from Clauses-9 and 14 reproduced above. Therefore, even if the
plaintiff was putting his lock at the shop in dispute, it will not amount to
creation of lease as the intention of the parties, nature of the property and
the purpose of induction of the plaintiff show creation of licence alone.
In view of the above, I do not find any patent illegality or
irregularity in the orders passed by the learned trial Court and first
appellate court, which may warrant interference by this Court in the present
revision petition.
Dismissed.
November 18, 2009 (HEMANT GUPTA) rishu JUDGE