Whether court can treat conducting agreement as a leave and license agreement if the word rent is used in said agreement?

 In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to  note that the extension of the contract was on same conditions. {Para 16}

17. On consideration of the matter, the High Court erred in

appreciating the ambit of Section 95, which led to consideration of

evidence which only indicates breach rather than ambiguity in the

language of contract. The evidence also points that the license was

created for continuation of existing business, rather than

license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term ‘rent received’. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law.

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10827 of 2010

Mangala Waman Karandikar (D) TR. LRS. Vs  Prakash Damodar Ranade 

N.V. RAMANA, CJI

Dated:  MAY 07, 2021

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Whether the City civil court can entertain an eviction suit if the plaintiff had given suit premises to the defendant for conducting business?

  Section 41(1) of the Presidency Small Cause Courts Act would apply

only to the suit and proceedings between the licensor and licensee or

landlord and tenant relating to recovery of the possession of any immovable

property situated in Greater Bombay or relating to the recovery of license

fees or charges or rent therefor irrespective of the value of the subject matter

of the suit suits or proceedings. In my view, since the Small Causes Court

has already recorded the finding that the suit business was given by the husband of the plaintiff to the predecessor of the defendants on conducting

and there being no relationship of a landlord and tenant or licensor or

licensee, Section 41(1) of the Presidency Small Cause Courts Act, 1882

would not apply to the facts of this case. Perusal of the prayers in the plaint

and more particularly, prayer clause (a) clearly indicates that the plaintiff

had applied for declaration that the defendants were trespassers and have no

right, title or interest in the suit premises or in her business after the period

prescribed under the Conducting Agreement was over. In prayer clause (b),

the plaintiff had prayed for an order and direction against the defendants to

vacate the suit premises and its business being carried therein.

65] In my view, the reliefs sought in prayer clause (b) is incidental to the

prayer clause (a) and more particularly, would depend upon whether the

plaintiff had given the suit business to the defendants on conducting suit

business. The premises were given to the defendants for conducting the suit

business. In my view, prayer clause (b) thus, even otherwise could not be

considered as a suit for recovery of possession of the licensee premises. The

period of Conducting Agreement was admittedly over much before the date

of filing suit by the plaintiff. The alleged rights and interest claimed by the

defendants in the suit premises were already rejected by the Small Causes

Court by recording detailed findings of fact which findings have admittedly,

attained finality. The defendants thus being trespassers in respect of the suit

business and also the premises, the Suit filed by the plaintiff for various reliefs claimed in the plaint was thus maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

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Is finding recorded by small cause court upheld by the high court is binding on the party before city civil court in a parallel proceeding?

 The Trial Court dealt with the orders passed by the Small Causes

Court in the declaratory suit filed by the defendants, order passed by the

Appellate Bench of the Small Causes Court and the order passed by this

Court in Writ Petition No. 3521 of 1999 filed by the original defendant

recording various findings in favour of the plaintiff herein and against the

defendants. The Trial Court, accordingly, rightly held that the original

defendant was judicially held to be just conductor of the business and

nothing more, which finding had attained the finality. In view of the fact that

various issues which were raised by the defendants in this Suit were already

concluded by the Small Causes Court and upheld by the Appellate Bench

and this Court, those submissions made by both parties were rightly not

considered by the Trial Court once again in the impugned judgment and

decree. In my view, the findings rendered by the Small Causes Court,

Appellate Bench of the Small Causes Court and this Court in respect of the

suit premises were binding on the parties in the parallel proceedings raising

similar issues.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 19th MAY 2020

Citation: 2020(6) MHLJ 86

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Whether court can direct the licensee to pay maintenance charges to the licensor in application U/O 15A of CPC in eviction suit?

The only question to be considered is whether the maintenance charges could have been directed to be paid under Over XV-A of the Code as prayed for by the defendants.

From the aforesaid averments it is clear that the plaintiff has admitted that it is liable to pay maintenance charges of Rs.25,000/- per month during the period of Leave and Licence agreement. As stated above the said agreement specifically refers to various amenities provided by the licensor and with a view to enable the licensee to enjoy the same the plaintiff is required to pay Rs.25,000/- per month.

10. The provisions of Section 7(14) of the said Act define the term "standard rent". The standard rent in the present case has not been determined under Section 8 of the said Act. However reading of both the agreements on the basis of which the plaintiff has been inducted as a licensee indicates that besides the amount of licence fees, it is also liable to pay maintenance charges and failure to pay maintenance charges gives a cause of action to the licensor to terminate the licence.

 In Puspa Sen Gupta vs. Susma Ghose (1990) 2 SCC 651 while considering the provisions of West Bengal Premises Tenancy Act, 1956 and the question whether the tenant was liable to pay amount of Rs.8/- per month towards electricity besides Rs.32/- as rent, it was observed that the expression "rent" was not defined under relevant Act. However on reading the entire Act, the word "rent" would also include payment in respect of amenities or services provided by the landlord under the term of tenancy. It was observed that considering various provisions a tenancy would carry with it amenities to be provided or services to be maintained by the landlord and hence the amount of rent would include the amount of electricity charges. Drawing support from the aforesaid observations it can be said in the facts of the present case that the plaintiff was liable to pay maintenance charges besides license fees. This has infact been admitted by the plaintiff in its written statement to the counter-claim. In that view of the matter the trial Court was not justified in refusing to direct the plaintiff to pay Rs.25,000/- per month towards maintenance charges. The impugned order therefore is liable to be modified accordingly.

 Bombay High Court

Daksha  Jyotindra Patel And Vs Big V. Telecom Pvt. Ltd. Nagpur ... on 8 November, 2019

Bench: A.S. Chandurkar

  WRIT PETITION NO.3553 OF 2019



CORAM : A. S. CHANDURKAR, J.

 Judgment pronounced on : November 08, 2019 

Citation: 2020(6) MHLJ 313

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Whether licensee who has acquired the status of the deemed tenant as per S 15 A of Bombay Rent Act will retain their position under Maharashtra rent control Act?

  Mr. Wachasundar, secondly, submits that there is no case of deemed tenancy in the facts of the present case. Learned Counsel submits that the provisions of the old rent control law, namely, the Bombay Rent Act have been replaced by the new law of rent control, namely, Maharashtra Rent Control Act, 1999 ("Act"). Learned Counsel submits that since there is a wholesale repeal followed by a new legislation on the same subject, only those matters under the repealed law, which are saved by Section 58 of the repealing Act, would stand saved. Learned Counsel submits that deemed tenancies of original licensees are not saved under the provisions of Section 58. Learned Counsel relies on the Supreme Court judgment in the case of State of Punjab vs. Mohar Singh Pratap Singh MANU/SC/0043/1954 : AIR 1955 SC 84 in support of his submission. He also relies on a decision of Allahabad High Court in Mahabir Sugar Mills Pvt. Ltd. vs. The Union of India MANU/UP/0057/1975 : AIR 1975 Allahabad 239. Whenever there is a repeal of an enactment, consequences of such repeal, which are laid down in Section 6 of the General Clauses Act, follow, unless as the section itself says, the repealing Act evinces a different intention. What the Supreme Court said in Mohar Singh Pratap Singh's case is that in the case of a simple repeal, there is scarcely any room for expression of a contrary opinion, but when the repeal is followed by a fresh legislation on the same subject, Courts would undoubtedly have to look to the provisions of the new Act for the purpose of determining whether they indicate a different intention. When courts thus look to the provisions of the new law, they would actually be expected to read the new law as a whole to find out if it evinces any different intention, thereby ruling out the application of Section 6 of the General Clauses Act. Looked at it from this point of view, the new Act does not at all indicate that it seeks to do away with all legal consequences which have taken place under, or legal relationships born out of, the provisions of the old law. If anything, it actually affirms such consequences or relationships. The most palpable expression of such affirmation is in the definition of "tenant" in the new Act. Sub-Section (15) of Section 7 of the new Act, which defines the expression 'tenant', includes within it a person, who is a deemed tenant. Deemed tenancy is not provided under the new Act; it is a concept which can only be treated as having been borrowed from the old Rent Act. In other words, it provides that those persons, who had become deemed tenants under the provisions of the then existing law, are to be included within the definition of 'tenant' under it. Our Court, in the case of Hindustan Ferrodo Ltd. vs. Hari Lachman Hasija MANU/MH/0226/2003 : 2003 (4) Mh.L.J. 50, has considered this particular aspect of the matter. That was a case, where the petitioners before this court were in possession of suit premises as licensees as of 1 February 1973, claiming to have acquired the status of deemed tenant as from that date. The court held that their status as deemed tenant was not taken away or put an end to by virtue of the provisions of Section 58 or Section 3 of the Maharashtra Rent Control Act. The petitioners before the court in Hindustan Ferrodo were a company, which fell within the ambit of clause (b) of Sub-Section (1) of Section 3 of the new Rent Act, and thus, were not entitled to claim benefits, privileges or protection under the new Rent Act and yet, our Court said that the character or status acquired by them as a deemed tenant under the old Act continued and unless the same was put to an end by a procedure known to law, they could not be evicted from the premises. This clearly puts paid to any controversy in that behalf.{Para 7}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7931 of 2019

Decided On: 19.05.2020

 EEPC India  Vs.  Additional Commissioner, Konkan Division and Ors.

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What will be the effect of leave and licence agreement between landlord and deemed tenant?

Section 15A itself has a non-obstante clause, which, as I have noted above, operates notwithstanding anything contrary contained in any inter parties agreement. In other words, the provision of Section 15A cannot be defeated or overriden by a private contract between the parties. As I have noted above, the non-obstante clause at the beginning of Section 15A makes a vital difference and makes its enacting provision incapable of being overridden by a private contract. (This is not a case, where, as a plea of fact, it is claimed that there was a physical surrender of tenancy and creation of a fresh licence post such surrender. What is claimed is that the benefit of Section 15A was waived by the licensee.)

14. The conclusive nature of the facts stated in the agreements of leave and licence (after 1 February 1973) is no answer to the licensee's plea of deemed tenancy either. There is no question here of any facts. The predecessors of Respondent No. 3, no doubt, did purport to create a licence in favour of the Petitioner despite the latter's legally acquired status of a deemed tenant. The question is, whether this licence has the effect of defeating the licensee's legally acquired status of deemed tenancy. That is a question of law. The agreement of licence may be a conclusive proof of the facts stated therein, but the law cannot be decided by the parties through their statements. That is not a matter of volition or individual contract.

16. The sum and substance of the above discussion is that in view of the deemed tenancy of the Petitioner herein, the suit premises are exempted from the application of the Act and as a result, the Competent Authority lacked jurisdiction to entertain any application under Section 24 of the Act in respect of the premises. The impugned orders of the Competent Authority and the Additional Commissioner, thus, deserve to be quashed and set aside.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7931 of 2019

Decided On: 19.05.2020

 EEPC India  Vs.  Additional Commissioner, Konkan Division and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/0573/2020, 2020(5) MHLJ 585

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Whether licence granted to the licensee is revoked on the filing of eviction suit?

Also, it is clarified that the plea of the defendant she had never received the legal notice dated 18.04.2015, has not been factored in this adjudication because in view of Section 61 of the Easements Act, 1882, the licence of the defendant to stay at the second and third floor of the suit property, stood definitely revoked, with effect from the day, when the defendant had received the summons for settlement of issues of this suit.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

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Whether the court must frame an issue and record evidence if the defendant takes plea of Benami joint owner of the property?

Reliance was also placed on behalf of the respondents on the verdict of this Court in Bhavna Khanna Vs. Subir Tara Singh decided on 01.02.2019 in CS (OS) No. 356/2016 with observations in para 23 thereof wherein it was observed to the effect:

"Be that as it may, the Benami Transactions (Prohibition) Act, 1988 which came into force on 5th September, 1988 i.e. much prior to the sale deed dated 16th December 2003, defined a benami transaction as a transaction in which property is transferred to one person for a consideration paid or provided by another persons. Section 3 thereof barred all persons from entering into benami transaction. Section 4 of the Act barred any defence in any suit, claim or action based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person. The claim of the defendant that out of total sale consideration of Rs. 55 Lacs, Rs. 39.5 was contributed by him but the sale deed of the property obtained in the exclusive name of his wife Dr. Rachana Khanna falls within the definition of benami transaction and which transaction was barred on the date of sale deed and the defendant is also barred from defending this suit on the plea of being the benami joint owner of the property. The said Act was, vide amendment of the year 2016, renamed as Prohibition of Benami Property Transactions Act,1988 and through there has been an overhaul of all the provisions of the earlier statute but the effect remains the same. Section 4 bars a defence in respect of any property held benami. The defence of the defendant in the present suit is thus barred by the said law and once the defence is barred, again permitted evidence to be led would be only at the cost of the valuable time of this Court and the Court ultimately after recording of evidence also will be bound to decide in accordance with law. It is for this reason that I say that the defence of the defendant of joint ownership does not raise any material proposition of fact or law for an issue to have been framed thereon."

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1402/2020

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Whether the dispute between licensor and licensee will be arbitrable even if the defendant has not filed application U/S 8 of Arbitration Act?

Objection of learned counsel for the plaintiffs that since no application under Section 8 of the Act has been filed by the defendant, hence the plea for rejection of the plaint cannot be accepted, deserves to be rejected in view of the decision of this Court dated 15th January, 2018 in CS (SO) No. 125/2017 Parasramka Holdings Pvt. Ltd. vs. Ambience Pvt. Ltd. and another, wherein this Court held that party invoking the arbitration clause does not have to file a formal application seeking a specific prayer for reference of the dispute to arbitration as long as it raises an objection in the written statement that the present suit is not maintainable in view of the arbitration clause in the agreement.

33. Keeping in view the aforesaid judgments as well as the judgment in Eastern Medikt (supra) and judgments of the learned Single Judge and Division Bench of this Court in Sharad P. Jagtiani (supra), this Court is of the view that the party invoking the arbitration clause does not have to file a formal application seeking a specific prayer for reference of the dispute to arbitration as long as it raises an objection in the written statement that the present suit is not maintainable in view of the arbitration clause in the agreement.

57. In the present case the defendant on the first day of the appearance itself even before filing of the written statement has raised the objection under Section 8 of the Arbitration and Conciliation Act and hence this objection cannot be summarily rejected on the ground that no application has been filed by the defendant under Section 8 of the Act.

In view of the discussion above, prima facie the plaintiffs have a right in their favour and interest in land which is more than that of a lessee or at least that of an irrevocable licensee. In MANU/SC/0359/1999 : (1999) 5 SCC 651 Olympus Superstructures vs. Meena Vijay, Supreme Court held that the relief of specific performance of an agreement can be awarded by an arbitrator. Thus if the arbitrator can direct creation of an interest in a property, the arbitrator can also award declaration of the interest of the parties in the property. Further, as held in Booz Allen in paragraph 46, an agreement to sell or an agreement to mortgage does not involved any transfer of right in rem but creates a personal obligation and, therefore, the claim for specific performance will be arbitrable contrary to a mortgage which is a transfer of a right in rem. Moreover, as noted in Vidya Drolia, there is nothing in the Transfer of Property Act or the Specific Relief Act which forbids the rights of the parties being decided by arbitration. The rights of the plaintiffs herein at best governed by the Transfer of Property Act or the Specific Relief Act, or that of an irrevocable licensee under the Easements Act can still be decided in arbitration. Consequently the present suits are not maintainable and the parties may avail the remedy of arbitration.

IN THE HIGH COURT OF DELHI

CS (COMM) 184/2020, 

Decided On: 21.07.2020

 Dharamvir Khosla  Vs. Asian Hotels (North) Ltd.

Hon'ble Judges/Coram:

Mukta Gupta, J.

Citation: MANU/DE/1394/2020

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Whether property allotted on the license to the deceased is partible among his legal heirs?

The undersigned, after the hearing of this Second Appeal on 13th July, 2018 had observed that the appeal was entitled to be allowed, being of the view that once the land had been allotted to the father of the parties as far back as in the year 1968 and the father of the parties had raised construction of a permanent nature thereon and continued in occupation thereof till his demise in 1975 and that further since after his demise his heirs had been allowed to continue in occupation for 30 years, at least till the institution of the suit and even thereafter, without any disturbance from the grantor i.e. the DDA, the allotment even if any by way of a license, was of a right and the license was not of such a nature which was determinable by demise of the licensee. Even a license with respect to immovable property, once allowed to continue after the demise of the licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. In this context, I have in Shyam Behari Vs. Ram Kishan (MANU/DE/3688/2013) and Surjit Singh Vs. Ekta Gulati (MANU/DE/3916/2012, appeal where against was dismissed by the Supreme Court in its order dated 3rd March, 2016 in Civil Appeal No. 7332/2013 titled "Inderjit Kaur Vs. Ekta Gulati") held that the law of inheritance/succession covers all assets of the deceased including possessory rights of the deceased to any movable and immovable property. Parity was also drawn with tenancy/leasehold rights, which also are determinable by nature and with respect whereto also it is settled law [Iresh Duggal Vs. Virender Kumar Seth MANU/DE/3068/2014 : 2015 (221) DLT 216, Dalip Kumar Vs. Om Prakash MANU/DE/2534/2015 Ram Lal Sachdev Vs. Sneh Sinha MANU/DE/0222/2000, UOI Vs. Mohinder Pratap Soni MANU/DE/1035/2016, Madan Lal Vs. Kuldeep Kumar MANU/DE/4039/2013, Pragun Buildtech (P) Ltd. Vs. Sarla Aggarwal MANU/DE/1348/2012 : 190 (2012) DLT 164, Surendra Pal Singh Vs. Ravindra Pal Singh MANU/DE/1128/2014, Satish Kumar Chojar Vs. Subhasini Chopra MANU/DE/1460/2014] that the said rights are partible. It was also felt that the Trial Court as well as the First Appellate Court had fallen in error in dismissing the claim of the appellant/plaintiff for partition for the reason which was not pleaded by the respondents/defendants in the written statement and on which no issue had been framed.

IN THE HIGH COURT OF DELHI

RSA No. 394/2015

Decided On: 29.04.2020

Gopi Chand  Vs.  Geeta Devi and Ors.

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Supreme Court: Eviction proceeding against a licensee will not abate on his death

When a licensor seeks possession from the alleged licensee though in a summary manner, he seeks restoration of the estate of immovable property which was permitted to be utilised by the licensee during the currency of the licence. Once the licence is put to an end, the right of reversion obviously survives for the licensor and whoever intermeddles with the property after the death of the licensee would obviously be liable to answer the claim of the licensor and in these proceedings it cannot be said that such a cause of action is personal against the licensee and dies with him.

2. In our view, therefore, the decision of learned Single Judge of Madras High Court cannot be sustained on the scheme of the Act and on the contrary, the view propounded by the Calcutta High Court in the aforesaid decision is the correct view. This very question was examined by a Division Bench of the Bombay High Court in its decision in the case of Mrs. Sakinbai v. Salebhai Hasanali MANU/MH/0146/1967 : AIR1967Bom9 . K.K. Desai, J., speaking for the Division Bench Held:

Ejectment proceedings under Section 41 of the Presidency small Cause Courts Act are for enforcing property rights and for recovery of properties. These are not proceedings relating to personal causes of action and they do not die with the death of a party to the proceedings whether he be an applicator opponent.

3. The High Court also in this connection placed strong reliance on the express language of Section 306 of the Indian Succession Act. In our view, the aforesaid decision of the Bombay High Court correctly analyses the scope and ambit of Section 41. 

IN THE SUPREME COURT OF INDIA

SLP (C) No. 17918 of 1997

Decided On: 30.09.1997

 Ha Malbari (Dead) by Lrs. Vs.  Nasiruddin Pirmohmad and Ors.

Hon'ble Judges/Coram:

S.B. Majmudar and M. Jagannadha Rao, JJ.

Citation: MANU/SC/1355/1997

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Whether court can grant maintenance charges along with license fees as per O 15A of CPC?

From the aforesaid averments it is clear that the plaintiff has

admitted that it is liable to pay maintenance charges of Rs.25,000/- per

month during the period of Leave and Licence agreement. As stated above

the said agreement specifically refers to various amenities provided by the

licensor and with a view to enable the licensee to enjoy the same the plaintiff

is required to pay Rs.25,000/- per month.

10. The provisions of Section 7(14) of the said Act define the term

“standard rent”. The standard rent in the present case has not been

determined under Section 8 of the said Act. However reading of both the

agreements on the basis of which the plaintiff has been inducted as a

licensee indicates that besides the amount of licence fees, it is also liable to

pay maintenance charges and failure to pay maintenance charges gives a

cause of action to the licensor to terminate the licence.

In Puspa Sen Gupta vs. Susma Ghose (1990) 2 SCC 651 while

considering the provisions of West Bengal Premises Tenancy Act, 1956 and

the question whether the tenant was liable to pay amount of Rs.8/- per

month towards electricity besides Rs.32/- as rent, it was observed that the

expression “rent” was not defined under relevant Act. However on reading

the entire Act, the word “rent” would also include payment in respect of

amenities or services provided by the landlord under the term of tenancy. It

was observed that considering various provisions a tenancy would carry with

it amenities to be provided or services to be maintained by the landlord and

hence the amount of rent would include the amount of electricity charges.

Drawing support from the aforesaid observations it can be said in the facts of

the present case that the plaintiff was liable to pay maintenance charges

besides license fees. This has in fact been admitted by the plaintiff in its

written statement to the counter-claim. In that view of the matter the trial

Court was not justified in refusing to direct the plaintiff to pay Rs.25,000/-

per month towards maintenance charges. The impugned order therefore is

liable to be modified accordingly.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.3553 OF 2019

 Daksha Jyotindra Patel Vs   Big V. Telecom Pvt. Ltd.

CORAM : A. S. CHANDURKAR, J.

Judgment pronounced on : November 08, 2019

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Whether licensor can obtain eviction of licensee by obtaining mandatory injunction without claiming possession?

 As it has been found by the Courts below that the Defendants are only licensees, the legal possession of the house is with the Plaintiff." Defendants have no independent  separate interest in the house. A licensees Defendants have no interest in the building and their possession cannot exclude the rightful possession of the Plaintiff as owners of the property. Merely because other modes of eviction are available to the Plaintiff his remedy by way of mandatory injunction cannot be denied to him. In Prahirondra Nath v. Narendra Nath MANU/WB/0038/1958 : AIR 1958 Cal 179 the Calcutta High Court held that the owner of an immovable property on termination of the licence is entitled to maintain a suit for mandatory injunction against the licensee to vacate the property. The above decision has been relied in Rajappan v. Veeraraghavan Iyer 1969 K.L.T. 811 and Krishna Moorthy Iyer, J. held that when the owner of immovable property terminates a licence he can sue for mandatory injunction directing the licensee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession. As the remedy of mandatory injunction is available to the Plaintiff as against the Defendants who are licensees the challenge against maintainability of the suit fails.

IN THE HIGH COURT OF KERALA

S.A. No. 695 of 1989

Decided On: 23.10.1989

 Ayissa Ummar Vs.  Ami

Hon'ble Judges/Coram:

M.M. Pareed Pillay, J.

Citation: 1990 (1) KLT 98

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Whether licensee can claim injunction against licensor to restrain him from dispossessing him?

If we examine the Easements Act, Section 63 speaks of the licensee's rights on revocation; it is profitable to extract it:

"63. Licensee's rights on revocation.--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."

50. From the above statutory extract, it is clear that a licensee, on revocation of license, is entitled to a reasonable time to leave the property. It does not contemplate eviction by due process. And, in fact, that waiting period is the due process, so to speak. The reason for this proposition, even de hors the statutory support, is not far to seek: a license creates no interest in the property; the seisin remains with the owner. In other words, the licensee only may use the immovable property, with no actual transfer of the very property.

51. Then, Sakkeer quoted with approval Chandu Lal v. MCD MANU/DE/0024/1978 : AIR 1978 Delhi 174 (FB), a Full Bench decision of Delhi High Court. In fact, Chandu Lal, as noted by Sakkeer, has held that a bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property, but is only a personal privilege. The license terminated, the licensor may deal with the property as he likes. This right he gets as the owner in possession of his property. He need not secure a decree of the Court to obtain this right.

52. Chandu Lal notes that a licensor can use reasonable force to secure or protect his possession. If he, however, uses excessive force, he may make himself liable to be punished under a prosecution, but he will infringe no right of the licensee. Then, it acknowledges that a person in exclusive possession of the property, no doubt, is prima facie considered a tenant, but he would not be held to be so if the circumstances negative any intention to create a tenancy.

53. Settled as the above proposition of law has been, if we further examine, Section 64 of the Easements Act provides for the consequences that follow forceful eviction. It is profitable to extract Section 64:

"64. Licensee's rights on eviction. - Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor."

54. It is explicit from Section 64 of the Easements Act that if a licensee has been evicted by the grantor for no fault of his, the remedy of the licensee is not restoration, but only restitution. Thus, the common law cannon of restoration ends in the face of statutory stipulation.

 Prima facie, I reckon the LL Agreement, dated 28th February 2010, is a license; it has come to an end; and the licensee's possession is permissive. The licensee's claim that it has exercised its option of renewal is a matter for trial. The property belongs to a society, which pleads that it has gone for the best, most lucrative offer of license from a third party and that is in the interest of the society, whose structures need, as it puts, much upkeep. Thus, the balance of convenience, too, lies in the licensor's favour. About the irreparable loss, first the licensee cannot be said to be possessing the property; in fact, it has not even alleged that the licensor has tried to dispossess it. And any loss it may sustain without its having the injunctive relief is a matter of reparation: it can be compensated. That is, it is no irreparable loss.

61. Thus, all the three cardinal principles of injunctive relief--prima facie case, balance of convenience, and irreparable loss or hardship--are not in the licensee's favour.

So I reverse the findings of the Appellate Bench of the Small Cause Court and set aside the Order, dated 21st September 2018. As a result, the licensee's application for injunction stands rejected.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 12033 of 2018

Decided On: 03.07.2019

New Shivam Co-op. Hsg. Society Ltd. Vs.  Raj Publicity, Bandra (W)

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation:   MANU/MH/1803/2019 

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Whether landlord can seek eviction of licensee if licence agreement is not registered?

 Undisputedly, the alleged license in favour of the petitioner was granted since 1st April, 2001 i.e. much after the enactment of the said Act. Undisputedly, the agreement in that regard was executed in writing on 3rd April, 2001. In other words, the first requirement of Section 55(1) was duly complied with by the parties. It is also undisputed fact that agreement was lodged for registration 31st December, 2002. In terms of Section 23 of Registration Act, a document is required to be presented for registration within four months from the date of its execution and in case of unavoidable circumstances, with the leave of the Registrar, it can be presented within the period of four months immediately after expiry of the initial period of four months. Obviously, a document required to be registered has to be presented for registration maximum within a period of eight months from the date of its execution. If the document is not so presented for registration, obviously, consequences provided under Section 49 of the Registration Act, 1908 would follow. In the case in hand, Undisputedly, the agreement was not presented within eight months. The document was executed on 3rd April, 2001. It was presented for registration on 31st December, 2002, nearly after 20 months after its execution. Being so, the document could not have been registered. However, as already observed above, non-registration of the agreement will not affect the right of the landlord to seek eviction of the licensee on the expiry of the license period nor the delay in presentation the agreement for registration will come in the way of the competent authority in taking cognizance of the application of the landlord on expiry of the licensee to the person in occupation of the premises of the landlord.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3151 of 2004

Decided On: 23.12.2004

Raj Prasanna Kondur Vs. Arif Taher Khan and Ors.

Hon'ble Judges/Coram:

R.M.S. Khandeparkar, J.

Citation: 2005(4) BomCR 383

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Whether legal representatives of deceased licensee will inherit right in licensed premises?

 A mere license does not create any estate or interest in the property to which it relates. It only confers legality for an act which would otherwise become unlawful. A license may be purely personal, gratuitous or contractual. The first two classes of mere licenses are revocable, the third class is revocable or not revocable according to the express or implied terms of the contract between the parties. A license coupled with grant of an interest in nature of property is not revocable. Such a license is a right to enter on land and enjoy a profit a prendre or other fv incorporeal hereditament.

19. The learned Advocate for the appellant invited my attention to Section 56 of the Indian Easements Act, 1882 to contend that the license cannot be transferred by the licensee in view of Section 56 of the Easement Act. Original defendant Andrew died during the pendency of these proceedings on 4-5-1996 and is represented by LRs respondents No. 1 to 7 on record.

Admittedly, the first Appellate Court also recorded that the construction was carried out with muds and bricks. If that is so, it cannot be said that those three rooms were constructed of permanent character, as such the construction is purely temporary.

20. Therefore, the finding as to irrevocable license in para 14 of the impugned judgment appears perverse and is not at all sustainable. Considering the legal position that mere license does not create any estate or interest in the property; but only confers legality on acts which would otherwise be unlawful. A license may be purely personal, gratuitous or contractual. In the instant case, it appears that it was gratuitous at the instance of mother as one brother, who is owner of the suit plot, allowed his another brother to occupy a portion of the suit plot such license or permission being of gratuitous nature such license is revocable and not transferable in favour of the legal representatives, as it is purely personal right to enter on the land and enjoy the occupation, till the license is revoked.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 372 of 1993

Decided On: 01.07.2008

 Francis  Vs.  Andrew and Ors.

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Whether a person can be treated tenant on basis of inspection report?

It must be noted that simply because a man is in occupation over a particular property he cannot be termed as a tenant or a licensee on the basis of his occupation. A tenancy like any other fact is a fact which is to be proved by evidence. A person cannot be held to be tenant merely on basis of inspection report showing him to be in possession of the disputed property when neither any lease deed nor any rent note or any other piece of paper was placed on record in support of the contention.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 372 of 1993

Decided On: 01.07.2008

 Francis  Vs.  Andrew and Ors.

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation: 2008(6) MHLJ 450

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Whether small cause court has jurisdiction to try eviction suit filed by employer by his employee?

To appreciate the controversy, it will be useful to state the pleadings of the parties in brief. According to the plaintiffs, the defendant, who is the revision applicant before this Court, was in service of the Trust. He was allotted the suit premises as a gratuitous/service licensee without payment of rent or charges. As the services of the defendant were no more required, the plaintiffs terminated the services of the defendant on 18.11.2004 with the immediate effect and requested him to vacate the premises and hand over the possession to the plaintiffs.  In view of these circumstances, the plaintiff filed the suit before the Small Cause Court for eviction and possession and sought the direction from the Small Cause Court to the defendant to deposit royalty amount of Rs. 5,000/ - per month. The defendant denied that he was provided the premises as service accommodation. According to him, he was inducted as a tenant independently of his service with the plaintiffs. According to him, in view of the plea taken by the plaintiffs, there was a relationship of the licensor and licensee and, therefore, the proceedings could be filed only before the competent authority under Chapter VIII of the Maharashtra Rent Control Act, 1999 and not before the Small Cause Court under the Presidency Small Cause Courts Act, 1882. After hearing the parties, the trial Court rejected the contention of the defendant and held that he had jurisdiction to entertain the suit and he also directed the defendant to deposit the arrears of compensation as claimed and also to continue to pay amount of Rs. 5,000/- per month till the final disposal of the suit. That order is challenged by the defendant in the present Revision Application.

As noted above, according to the pleadings of the plaintiff, the defendant was not paying either license fee or charge or any rent and therefore he was neither a licensee as defined in Section 7(5) nor he was a tenant under Section 71(15) of the Rent Act and therefore his case would not be covered either under Section 22 or 24 of the Rent Act. Therefore, the landlord could not have made an application before the competent authority and the provisions as contained in Chapter VIII would not be applicable. Therefore, the competent authority does not have jurisdiction to entertain application of the plaintiff and as a result of this, the jurisdiction of Small Cause court under Section 41 of the Presidency Small Cause Court Act is not ousted. In view of these facts and legal position, it must be held that the Small Cause Court is competent to entertain the suit of the plaintiff under Section 41 of the Presidency Small Cause Court Act. Therefore, I do not find any illegality or irregularity in the findings of the trial Court in respect of its finding about jurisdiction.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 181 of 2010

Decided On: 09.09.2010

Viraf G. Ichhaporia  Vs. Mancherji Jamshedji Cama and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2010(6) MHLJ 386

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Whether suit for specific performance of contract is tenable before small causes court?

In the case of (ING Vysya Bank Ltd. v. Modern India Ltd.), MANU/MH/0066/2008 : 2008 (2) Bom. C.R. 255 the learned single Judge of this Court considered an application in section 9 of the Arbitration and Conciliation Act, 1996 for granting interim relief to a licensee against the licensor from terminating his license and taking over possession. In that case also the licensee claimed to be in possession of the licensed premises which was later renewable and consequently the right of extension/renewal of the license was claimed under the agreement. The respondent claimed that the application was essentially for specific performance of the agreement which relief could not be granted by the Court of Small Causes at Bombay under section 19(h) of the Act.

The Court considered that the substance and essence of the suit as required to be seen, to look to the kernel and not the chaff and to see the jural relationship between the parties upon the nature of the cause of action and the character of the reliefs. The Court also observed that in a suit relating to recovery of possession some of the reliefs may be structured around a claim for specific performance. If the theme and the foundation relate to recovery of possession such a relief could not be seen an isolation. Consequently the Civil Court's jurisdiction would have to be considered upon seeing the substance of the suit. The Court further observed that the basis to protect the possession against the dispossession in a preexisting relationship was important to consider and if that relationship was between the licensor and licensee (as also landlord and tenant or lessor and lessee) then the substance of the claim would be to protect the possession against recovery which would be a suit relating to possession. Hence it is observed in para 17 of the judgment that only a suit for specific performance simplicitor would not be covered. But if the suit was not for specific performance but essentially for continuation of the existing leasehold right it would be covered by the aforesaid legislation.

The Court noted that one of the reliefs was the execution of fresh leave and license agreement upon the declaration sought and not a bare relief of specific performance. Consequently it held that the Civil Court would be barred from trying such a suit.

IN THE HIGH COURT OF BOMBAY

Chamber Summons (L) No. 1075 of 2015 in Suit No. 1930 of 2002

Decided On: 26.06.2015

 Manilal & Sons Bombay Forigings Ltd. Vs. Manilal & Sons

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation: 2016 Bom RC183.

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What reliefs can be claimed before small cause court?

 Mr. Sanghavi also submitted that in the plaint the plaintiff has claimed a sum of Rs. 35,625 by way of damages for trespass for the period June 1, 1970 till the date of the suit, that is, till April 1978, at the rate of Rs. 375 per month and for a sum of Rs. 375 per month from the date of the suit till possession of the said flat is handed over to the plaintiff either by way of future mesne profits or damages or compensation for wrongful use and occupation of the said flat. Mr. Sanghavi argued that Section 41 of the Presidency Small Cause Courts Act did not in terms include a suit for damages for trespass or for compensation for wrongful use and occupation or for mesne profits. In his submission, the section only related to recovery of licence fee or charges and that the licence having been determined, all that the plaintiff could recover from the defendant was either damages for trespass or compensation for wrongful use and occupation of the property or mesne profits. This argument by Mr. Sanghavi overlooks the language used in the said Section 41. The said Section 41 speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". It is significant that the words used in the said Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Rule 12 of Order 20 of the Civil P. C., 1908, provides as to how a Court is to proceed "Where a suit is for the recovery of possession of immovable property and for rent or mesne profits." The contrast between the language used in Order 20, Rule 12 and the said Section 41 immediately strikes one. The phrase "relating to the possession of any immovable property" is wider than the phrase "for the recovery of possession of any Immovable property." The words "relating to" are intentionally and designedly used in the said Section 41 not to confine the section only to a suit for the recovery of possession of immovable property situate in Greater Bombay but also to permit to be included within the ambit of such a suit all other reliefs which the plaintiff can claim in a suit for the recovery of possession of immovable property on the termination of a licence or a tenancy.

IN THE HIGH COURT OF BOMBAY

Short Cause Suit No. 890 of 1978

Decided On: 08.02.1979

Nagin Mansukhlal Dagli  Vs. Haribhai Manibhai Patel

Hon'ble Judges/Coram:

Balkrishna Narhar Deshmukh, C.J. and D.P. Madon, J.

Citation: AIR 1980 Bombay 123.

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