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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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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What are the rights of wife if landlord/lessor/licensor is seeking to evict her from a shared household obtained under Domestic violence Act?

  In case, the shared household of a woman is a

tenanted/allotted/licensed accommodation where tenancy/

allotment/license is in the name of husband, father-in

law or any other relative, the Act, 2005 does not

operate against the landlord/lessor/licensor in

initiating an appropriate proceedings for eviction of

the tenant/allottee/licensee qua the shared household.

However, in case the proceedings are due to any

collusion between the two, the woman, who is living in

the shared household has right to resist the

proceedings on all grounds which the

tenant/lessee/licensee could have taken in the

proceedings. The embargo under Section 17(2) of Act,

2005 of not to be evicted or excluded save in

accordance with the procedure established by law

operates only against the “respondent”, i.e., one who

is respondent within the meaning of Section 2(q) of

Act, 2005.{Para 117}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2483 of 2020

SATISH CHANDER AHUJA Vs  SNEHA AHUJA 

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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 Small cause court has jurisdiction to try suit between licensor and ex-licensee?

He relies on the judgment of a Division Bench of our Court in the cases of Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel MANU/MH/0179/1980 : AIR 1980 Bombay 123.

5. As held by our Court in the case of Nagin Mansukhlal Dagli (supra), a suit for recovery of immovable property held by the licensee as well as for recovery of licence fee or charges may very well lie under Section 41 after such licence has come to an end; it is nonetheless a suit between a licensor and a licensee; and the argument that Section 41 must be confined only to suits where the licence has not been terminated earlier by the licensor, is fallacious. The expression 'licensees' used in Section 41 of the Presidency Small Causes Courts Act not only includes licensees whose licence is subsisting but also licensees whose licence has been terminated by the licensor prior to the filing of the suit. After the decision of the Division Bench in the case of Nagin Mansukhlal Dagli, the argument that the suit for recovery of possession could be filed by a licensor against a licensee only in a case where the relationship of licensor and licensee subsists as on the date of the suit, is no more res integra.

7. Accordingly, on the averments made in the plaint itself, it is clear that the present suit is between a licensor and a licensee and it relates to recovery of possession of premises which are the subject matter of licence and also for recovery of licence fee. This suit is exclusively within the jurisdiction of the Courts of Small Causes under Section 41 of the Presidency Small Causes Courts Act.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 3139 of 2010 in Suit No. 886 of 2010 and Suit No. 886 of 2010

Decided On: 24.11.2015

Kirti Sohan Modi  Vs.  Creation

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/3282/2015

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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 incorrect interpretation of leave and licence agreement is binding on licensor?

Mr. Seervai then relied upon Section 55 of the Maharashtra Rent Control Act, 1999, which reads as under:

55. Tenancy agreement to be compulsorily registered.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908 (XVI of 1908).

(2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let out to him, shall prevail, unless proved otherwise.

 Secondly, and more important, is the fact that the reliance upon Section 55(2) in the facts of the present case, is entirely misconceived. Under Section 55(2) if the agreement is not registered "the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let out to him, shall prevail, unless proved otherwise". The term "contention" in Section 55(2) refers to contentions of fact and not of law. Construction of the terms and conditions of a contract are questions of law. A court cannot be bound by an erroneous construction of the contract.

19. In this case, there is no dispute between the parties as to the terms of the agreements. It is not the company's case that any terms other than those contained in the said leave and licence agreement were agreed upon between the parties. In other words, the submission was not based on the existence of an independent term. The first contention raised by Mr. Seervai was based on the construction of admitted terms. I have held this construction to be erroneous. There is nothing in Section 55 which remotely suggests that even an incorrect interpretation of an agreed/admitted term is binding on the licensor.

IN THE HIGH COURT OF BOMBAY

C.P. No. 898 of 2008

Decided On: 12.02.2009

 Corporate Management Council of India P. Ltd. Vs.  Lonza India P. Ltd.

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Whether it is mandatory for licensor to issue quit notice to licensee prior to filing of eviction suit?

In view of the concurrent findings of the courts below, the fact remains that the defendant was not a tenant but was a mere licensee in possession of the land. The question, therefore, is as to whether a licensee is entitled to get a notice to quit or a demand for possession before a suit for his ejectment can be instituted. A licensee has, no real interest in the property. He uses the property by the permission of the owner with whom the legal possession continues. It gives the licensee a personal privilege with no interest in the, land (vide Associated Hotels of India Ltd. v. R. N. Kapoor, MANU/SC/0168/1959 : [1960]1SCR368 ; B. M. Lall v. Dunlop Rubber Co. (India) Ltd., MANU/SC/0334/1967 : [1968]1SCR23 ; Errington v. Errington (1952) 1 KB 290). That is why normally a licence comes to end with the death of either party. To call upon the owner in every such case to make a demand for possession before suit would be a tax on his generosity, though normally speaking one does demand possession before going in for a costly and time-consuming litigation. At the same time there may be cases where the licensee may have made commitments to others on the basis of the licence, and it would be inequitable to call upon him to vacate at once by a suit, without giving him sufficient time ahead to make suitable arrangements. There can be no universal inflexible rule that a licence has to be revoked by a demand for possession, before a suit is instituted. It will depend on the facts and circumstances of a particular case. The learned Judge has relied on a Canadian case, (The Canadian Pacific Rly. Co. v. The King) reported in AIR 1932 PC 108 and Sudhir Kumar Majumdar v. Dhirendra Nath Biswas reported in MANU/WB/0162/1957 : AIR1957Cal625 in the main. These two decisions do not support the contention that a licensee is always entitled to get a notice or demand before a suit to recover possession can be filed. In the Privy Council case their Lordships held that in circumstances where "the exercise of the right may have involved the licensee in obligations in other directions, which the determination of the license would disable him from fulfilling unless the licenses were determined after a notice sufficient, in point of time, for the making of substituted arrangements", a notice would be necessary. In Sudhir's case, MANU/WB/0162/1957 : AIR1957Cal625 also the person in occupation was a tenant at will and the facts would not be exactly similar. What is more, in Gobinda Chandra Ghose v. Nanda Dulal Sut 27 Cal LJ 523 : (AIR 1918 Cal 601 (2)) an exactly similar point came up for consideration before this Court and it was held that the licensee was not entitled to get a notice and that the Suit should be decreed. In the facts of this case, I must hold that no previous notice or demand for possession was called for.

IN THE HIGH COURT OF CALCUTTA

A.F.A.D. No. 1568 of 1961

Decided On: 14.01.1971

Smt. Sayambari Dassi Vs.  Dwijapada Naskar

Hon'ble Judges/Coram:

S.K. Chakraborty, J.

Citation: AIR 1971 Cal 435

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Whether licensee can challenge title of licensor?

 Lastly, and on the same basis, is the finding that defendant 1 was inducted into the flat as a licensee by Sadashiv and was therefore estopped from questioning his licensor's title. The claim to protection under section 15-A of the Rent Act is not available to defendants 1 to 3. In fact defendant 1 does not make that claim in the proper sense of the concept for he has set up an adverse title to his licensor. A licensee recognises the superior title of his licensor and where the claim set up by him conflicts with the licensor's title, he is not a licensee or entitled to the benefit of section 15-A.

IN THE HIGH COURT OF BOMBAY

Suit No. 595 of 1976

Decided On: 16.04.1990

 Narayan Sadashiv Bhalerao Vs.  Navnitdas Narayandas Barshikar and Ors.

Hon'ble Judges/Coram:

S.M. Daud, J.

Citation: 1990(2) BomCR 483

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Whether licensee can be evicted forcefully if licence agreement has expired?

 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 SUPREME COURT OF INDIA

Civil Appeal No.1392 of 1974

Decided On: 09.08.1989

Krishna Ram Mahale  vs. Shobha Venkat Rao

Hon'ble Judges/Coram:

K.N. Singh and M.H. Kania, JJ.

Citation: AIR 1989 SC 2097

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Whether statutory tenant prior to 1973 could have created license?

 It must be emphasised that as a result of the various decisions referred to hereinbefore, it must be accepted that statutory tenant was in the same position as a contractual tenant until the decree for eviction was passed against him and the rights of a contractual tenant included the right to create licence even if he was the transferor of an interest which was not in fact the transfer of interest. {PARA 67}

In the premises

it must be held that all licensees created by landlords or by the tenant before 1st February, 1973 and who were in actual occupation of a premises which was not less than a room as licensee on 1st February, 1973 would be the licensees of the landlord or tenant and whether there be any term in the original agreement for tenancy permitting creation of such tenancy or licences or not they would become tenant and enjoy the rights granted under the Act specially those mentioned in Section 14(2) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 840 of 1986

Decided On: 25.09.1986

Chandavarkar Sita Ratna Rao Vs.  Ashalata S. Guram

Hon'ble Judges/Coram:

K.N. Singh and Sabyasachi Mukherjee, JJ.

Citation:AIR 1987 SC 117

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Whether court can strike off defence if defendant commits default in deposit of license fee in eviction suit?

In the present case there is no question of any claim of arrears being barred by the law of limitation. Under Order XXXIX Rule 11 which is introduced in the Civil Procedure Code by Rules made by the Bombay High Court in 1983, "where the Court orders any party to a suit............to do or not to do a thing during the pendency of the suit,.................and such party commits any default in respect of or contravenes such order.............the court may............strike out the defence if the default............is committed by the defendant..........." Hence the Small Cause Court also has power to order the striking off of defence if the defendant commits defaults in depositing license fee.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 3870 of 1984

Decided On: 03.05.1985

Sangeeta Prints Vs Hemal Prints and Ors.

Hon'ble Judges/Coram:

S.V. Manohar, J.

Citation: AIR 1986 423

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Whether licensee can be directed to deposit licence fee during eviction proceeding?

This decision was expressly overruled by the Division Bench which held that the court had such a power under Section 151, Civil P.C. The Division Bench observed that in many cases landlords depend for their livelihood upon the income from the properties. It would be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of their use and occupation of their premises while the landlord is required to meet his responsibilities and liabilities. The process of the court over which neither the landlord nor the tenant defendant has any control cannot be allowed to be abused and work to the detriment of a person. If it is capable of resulting in harm, then the Courts are not powerless to make orders so as to mitigate that harm. By parity of reasoning, in cases between a licensor and licensee also a similar order can be passed. Such orders as between a lessor and lessee are now expressly permitted under Order XVA, Civil P.C. By analogy, similar orders can be passed in cases between licensor and licensee also.

15. Learned Judges of the Division Bench in the above case also relied upon Order XXXIX, Rule 10, Civil P.C. in support of their decision. They held that in the case of a landlord and tenant, the tenant cannot dispute his liability to pay the rent to the landlord although the quantum of such rent may be in dispute. The Division Bench held that in such cases the tenant, in fact, is deemed to admit that some money is due to the plaintiff. In such a situation the court can direct the tenant to deposit such amount as the court may deem fit under Order XXXIX Rule 10. The same reasoning applies to a case between licensor and licensee also. The licensee can be similarly directed to deposit certain amounts in respect of licence fees or mesne profits under the provisions of Order XXXIX Rule 10 in view of the Division Bench of this court in the above case.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 3870 of 1984

Decided On: 03.05.1985

Sangeeta Prints Vs Hemal Prints and Ors.

Hon'ble Judges/Coram:

S.V. Manohar, J.

Citation: AIR 1986 423

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Whether licensee can be denied protection of Rent Act saying that he was given premises under conducting agreement?

For claiming protection under section 15-A of the Bombay Rent Act, three requirements are necessary to be proved by licensee :---

(i) the person must be in possession on 1st day of February, 1973 ;

(ii) he must be in occupation of premises or part thereof which is not less than a room, and

(iii) he should be in possession as a licensee.

There is no dispute that the first two conditions are satisfied by defendant No. 1. The question is whether he is a licensee as contemplated by the provisions of section 5(4-A) of the Bombay Rent Actor not? Section 5(4-A) defines 'licensee' as follows :---

"5(4-A) "licensee", in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co-operative housing society registered or deemed to be registered under the Maharashtra Co-operative Societies Act, 1960 but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor, or a person having and accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital sanatorium, Dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by any employee or this spouse who or account of the exigencies of service or provision of a residence attached to his of her post or office is temporarily not occupying the premises, provided that he on she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or a person having accommodation in any premises or part thereof for conducting a canteen, crache, dispensary or other services as amenities by any undertaking or institution; and the expressions "licence", "licensor" and "premises given on licence" shall be construed accordingly".

This definition can conveniently be divided into three parts-(1) general; (2) inclusionary part and (3) exclusionary part. In this matter, I am concerned with the exclusionary part. The first part suggests the category of licensees who are in possession and control of the premises entirely. In other words, where a licensor does not retain any control over the premises and the dominant object in creating the license is to give the premises in occupation of the licensee entirely. The third part deals with those cases where possession is not given entirely to other party. It suggests that some control is retained by the licensor over the premises. This part mentions 'a person conducting a running business belonging to the licensor'. In such a case, the dominant object is not to give the premises in possession of the other party but to give the business for running the same and incidentally possession of the premises is handed over. The licensor does not lose his control over the premises entirely. The Chambers 20th Century Dictionary gives the meaning of 'conduct' as follows :---

"to lead or guide, to direct, to manage act or method of leading or managing, escort, management".

Similarly the New World Dictionary of Webster's gives the meaning of 'conduct' as "conducting skill supervising by using by one's executive skill, knowledge or wisdom - the process or way of managing or directing, management, handling."

This indicates that where the licensor primarily wants to take the advantage of the skill of the other party and, therefore, the business is given for the purpose of running, it can be said to be given for conducting. In effect, in all those cases, conductor is put in possession only for the purpose of running in view of his skill. In the present case, I find that it is not the case of the plaintiff that defendant No. 1 was given the business in view of his skill. Further, the premises were given entirely in the control of defendant No. 1. The plaintiff or his father did not retain any control whatsoever either in the premises or in the business. The business run in the shop was of the licensees. The plaintiff has not given one reason or mentioned any motive why the running business was given to defendant No. 1. All this indicates the dominant object in putting the defendant No. 1 in possession was to create licence in respect of the premises and not to give the running business for the purpose of mere conducting. In my view, the business was given in possession of defendant No. 1 incidentally along with certain articles. However, this does not obliterate the real intention and object of the parties i.e., to give the premises on license.

12. In my view, there must be some reason in giving the running business for conducting to the other person such as disability to conduct the business or the intention must be to give the business temporarily in possession of another for some reason. In that case one can say that the business belongs to licensor. If this is not so then the original landlord and licensor can collude to take advantage of shortage of accommodation and share in the benefits by putting the licensee out of reach of the provisions of Bombay Rent Act, or the licensor himself may pocket those benefits and in the process real landlord shall be deprived on the one hand and on the other such licensee shall be deprived of statutory protection completely. However, in both the cases the licensee shall be at the mercy of the other party. The sword of losing possession shall ever remain hanging on his head unless he satisfies the whims and demands of the other party. He may be in possession exclusively for decades and carry on business on his own, but he will have no protection. The very object of giving protection to licensees can be defeated with impunity if this is allowed. The present case can be a good illustration where no reason has been pleaded or pointed out why business was given for conducting. The licensor has acted as middleman only. This is not at all contemplated by the exclusionary clause of section 5(4-A).

13. In my opinion, it is necessary to give restricted meaning to this exclusionary clause contained insection 5(4-A) in view of the object of the Bombay Rent Act. The object of the Act is to give statutory protection to persons who are exclusively in possession of the premises. In fact, section 15-A was introduced by the Maharashtra Act 17 of 1973 with a view to widen protection and to include the licensees who were in possession on 1st February, 1973 of premises which was not less than a room under its protective umbrella. If restricted meaning is not given to this exclusionary clause, then the distinction between the licensee and the persons mentioned in that clause would be blurred and even those who were put in possession of the premises exclusively and doing their own business for years shall be excluded. It is not desirable. It is necessary to consider the dominant object or intention of the parties against the background of all the factors mentioned above. The courts below have failed in this.

14. In my view, the reasons given by the learned Judge of the Court below for holding that defendant No. 1 falls in the exclusionary part i.e., (i) name of the shop was not changed : (ii) some furniture and stock-in-trade was given to defendant No. 1 when he started business in the premises; (iii) the shop license stood in the name of plaintiff and (iv) defendant No. 1 never insisted that rent receipts should be issued in his name, are such that they do not militate against holding the defendant No. 1 as licensee failing in first part and protected. In fact, it was not necessary for defendant No. 1 to change the shop name since business was done in that name for long. He might have taken some furniture and stock-in-trade when started the business instead of buying new one. Further, in view of close relations the shop license might have continued in the name of plaintiff. It is not possible for me to accept these facts as indicating that the defendant No. 1 was a person merely conducting the running business belonging to the licensor and was falling under the exclusionary part of section 5(4-A).

15. In my view, therefore, the defendant No. 1 was a licensee squarely falling within the first part ofsection 5(4-A) and was entitled to get the protection under the Bombay Rent Act in view of section 15-A(i) as he has fulfilled all the three requirements as mentioned above by me.

Bombay High Court

Varisalli Mohammed Ilias vs Abdul Sattar Gulam Hussein (Since ... on 6 August, 1991

 citations: 1992 (1) BomCR 27

Bench: P Patankar

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Whether mandatory injunction can be granted for vacation of property by person in permissive possession of property?

 I have given my anxious consideration to the arguments advanced by the counsel appearing for both parties at the Bar. In view of the rival contentions, the first question that arises for consideration is whether a suit for mandatory injunction simpliciter requiring vacation of the property is maintainable against the licensee or a person in permissive occupation whose licence or occupation has been terminated by the licensor? To consider the question in controversy, it is worthwhile to quote the relevant Sections.

9. Section 39 of the Specific Relief Act, 1963, reads as follows:

Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

10. Section 52 of the Indian Easement Act, 1882, reads as follows:

"License" defined.--Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.

11. Let us make a combined analysis of Section 52 of the Indian Easement Act and Section 39 of the Specific Relief Act, to determine the question arose above. Licence is a permission granted to the licensee to do or continue to do some act in or upon the immovable property. But the granting of that permission does not create any interest in the property and in the absence of such permission the act would be an unlawful one also. Licensee may be the actual occupant of the property and there cannot be an element of animus possidendi. A licensee has only a right of occupation with the permission of licensor and his possession is not a juridical possession. Since the permission granted is a limited one, which does not cause to create an interest in the property, the licensor has a right to revoke the permission which he had given earlier. Necessarily, such revocation correspondingly casts an obligation on the licensee to vacate the property in obedience to the revocation of permission. If that be so, if the licensee fails to perform his obligation, i.e., vacation of the property, the Court can issue a mandatory injunction to prevent the breach of said obligation and to compel the vacation of the immovable property. Thus, a combined analysis of Section itself makes the issuance of mandatory injunction against the licensee to vacate the property in possession of licensee within the legislative sanction under Section 52 of the Indian Easement Act and under Section 39 of the Specific Relief Act.

12. It follows that such mandatory injunction order to vacate the property is an enforceable one under Order XXI Rule 32, particularly, in view of Explanation under sub-rule (5) of Order XXI, which clarifies that "the act required to be done covers both prohibitory as well as mandatory injunction".

 Even after the termination of the licence, the licensee may have to continue to be in occupation of the premises for some time, because in many cases the licensee may require some reasonable time to remove the materials belonging to him and quit the place. But, during such time also, the licensor will be deemed to be in possession through his licensee, because the licensee cannot have any independent or separate interest in the premises. In that case, a licensee cannot possibly be treated as a trespasser. Further, it is held that it will be difficult to make a distinction in actual practice as to when a licensee becomes a trespasser and upto what time he will continue to be a licensee. There can be a more definite test. If on the expiry of the licence an assertion of a hostile title is made by the licensee and the licensor slept over the matter, then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser. Under such circumstances, the licensor will have to sue for recovery of possession and a suit for a mandatory injunction under Section 39 of the Specific Relief Act, 1963, will not be the remedy. Put it differently, the real test is whether on the expiry of licence the licensee has asserted his hostile title and whether the licensor had slept over the matter despite the assertion of hostile title made by the licensee, after the termination of licence?

IN THE HIGH COURT OF KERALA

R.S.A. No. 1278 of 2010

Decided On: 18.02.2014

Abraham Mathew Vs.  Mariamma Yohannan

Hon'ble Judges/Coram:

K. Harilal, J.

Citation: 2015(1) RCR (RENT)19

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