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2001 DIGILAW 119 (CAL)

Namita Sen v. Nikhil Dey

2001-03-02

SAMARENDRA NATH BHATTACHARJEE

body2001
Judgment 1. At the time of admission of the appeal, the Division Bench did not formulate any substantive question of law. At the time of bearing Sri Roychowdhury, the Senior Counsel appearing for the appellant, sought to formulate such point when Mr. Banerjee appearing for the respondents opposed such attempt by arguing that this Court has no jurisdiction to hear the appeal as the same is non-est in the eye of law. According to Mr. Banerjee under Section 100 of Civil Procedure Code, such point have to be formulated at the time of admission of the appeal and this Court can formulate any other substantive question of law not formulated by it, if it is satisfied that the case involves such question. 2. It is necessary to set the section for convenience. It lays down : "Section 100. Second Appeal-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this• section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be beard only on the question so formulated, and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to bear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it if it is satisfied that the case involves such question. 3. The key note of the section is that a Second Appeal can only be beard' if the Court is satisfied that substantial question of law is involved. The admission of appeal by the Division Bench itself indicates that the Court was prima facie satisfied about the existence of substantial question of law being involved in the case. 3. The key note of the section is that a Second Appeal can only be beard' if the Court is satisfied that substantial question of law is involved. The admission of appeal by the Division Bench itself indicates that the Court was prima facie satisfied about the existence of substantial question of law being involved in the case. True, it is that the same was not expressly formulated. It is difficult to concede to argument of Mr. Banerjee. In my bumble opinion, if such questions were not formulated by the Division Bench at the time of admission of appeal on hearing the appellant ex parte the Court at the time of hearing in the presence of both the sides must have jurisdiction to formulate the same on hearing both the sides, otherwise the appeal has to be either dismissed without hearing the parties although the same was admitted by the Division Bench for hearing or the appeal has to be sent back to the Chief Justice for assignment to the appropriate Bench once again for formulation of such questions. Such procedure cannot further the ends of Justice. If the substantive questions of law are formulated on hearing both the sides nobody can claim to be prejudiced by such formulation which, in my opinion, would be a sufficient compliance with the provision of Section 100 C.P.C., I, therefore, rejected the contention of Mr. Banerjee and heard the appeal by formulating such substantive question of law on hearing both the sides. 4. The appellant inducted the respondent as a licensee for a period of two and a half years by executing an agreement duly signed by both the parties stipulating the rate of rent per month, security money to be deposited, the amount for hiring the furniture and further stipulating that licence shall not be revoked without a notice of six months from either side. If the licensee surrenders the licence without notice of six months, the amount of the rent for the period which falls short of six months shall be adjusted against the security deposit. The trial Court decree the suit on a finding that the respondent was a licensee under the landlord. In appeal, the first appellate Court reversed the judgment of the trial Court by holding that the agreement has created a tenancy. He dismissed the suit. The trial Court decree the suit on a finding that the respondent was a licensee under the landlord. In appeal, the first appellate Court reversed the judgment of the trial Court by holding that the agreement has created a tenancy. He dismissed the suit. The present appeal is against the finding of the first appellate Court. 5. Mr. Roychowdhury argued before me that the learned first appellate Court did not apply proper tests for determining the status of the respondent in relation to the appellant and came to the finding without considering the material evidence, i.e., rent receipts and as a result, the judgment suffers from perversity. According to him, the High Court can interfere with such a judgment as it involves a substantive question of law whether the judgment and decree passed by the First Appellate Court is bad in law as the same is peryerse and is vitiated by non-application of proper tests. In support of his argument, he has cited a decision in Full Bench of High Court in (1) Ratanlal Banshilal v. Kishorilal Goenka & Ors. reported in AIR 1993 Cal l44, wherein Paragraph 95 Their Lordships held "Thus, for a question of law to assume substantiality it is enough if it affects the right of the parties. In Pankaj Bhargave (supra), the Supreme Court has further taken the view that even a mixed question of law and fact could constitute a substantial question of law and there cannot be a strait jacket formula for determining what question of law is a substantial one. It will depend on facts and circumstances of each case. But, the primary consideration in whether on the question depends on the rights of the parties in the case. This three Judge Bench of the Supreme Court made this observation even after taking notice of the ratio of the larger Bench of the Supreme Court in Chunilal v. Mehta and Sons (supra)." 6. Mr. Banerjee contradicting Mr. Roychowdhury has argued that whether a person is a tenant, or a licensee, is purely a question of fact. The learned First Appellate Court in its long judgment has discussed in details the evidences on record and the documents exhibited by the parties. It cannot, therefore, be said that the judgment suffers from perversity or wrong tests have been applied, Mr. The learned First Appellate Court in its long judgment has discussed in details the evidences on record and the documents exhibited by the parties. It cannot, therefore, be said that the judgment suffers from perversity or wrong tests have been applied, Mr. Banerjee cited several decisions reported in (2) 1998 (4) Indian Civil Cases page 152 ; (3) 1989 (3) SCC 574 ; (4) 1997(2) CLT (H. C.) 211 ; (5) 1997(1) SCC 706. 7. In view of the arguments advanced by the learned Counsel for both the sides, I am inclined to formulate the question whether the judgment and decree passed by the First Appellate Court is bad in law due to perversity and non-application of proper tests. 8. In Associated Hotels of India Ltd. v. R. N. Kapoor Their Lordships of Supreme Court held :- "The following propositions may, therefore, be taken as well established; (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) The real test is the intention of the parties whether they intended to create a lease or a licence; (3) If the document creates an interest in the property, it is a lease; but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is licence; and (4) If under the document a party gets exclusive possession of the property, prima facie I he is considered to be a tenant, but circumstances may be established which negative the intention to create a lease." 9. The learned First Appellate Court applied the following tests :- (1) The substance should be preferred to the form; (2) The real test is the intention of the parties; (3) If the document creates an interest in the property it is lease, but if it merely permits use of property and possession remaining with the owner it is licence; (4) If the party• gets exclusive possession prima facie, he shall be considered a tenant, but circumstances may negative the intention to create a lease. 10. 10. The First Appellate Court held as follows after having a discussed in details, all the exhibits adduced by the parties and the oral evidences :- (1) "It is clear that the entire agreement and contract made by P.W. 2 and that is why the plaintiff's signatures over the agreement marked as Ext. 1 & D is without any date whereas all other signatures including defendant. P.W. 2 and the witnesses bear the date 2.4.1986. Hence, I am of opinion that there was no second agreement as alleged by the plaintiff and Ext. 1(a) is nothing but a copy of the original agreement entered into between the parties on 2.4.86. The plaintiff with the assistance of her husband has converted it into a separate agreement and introduced this story in the case." It is, purely, a question of fact and no substantial question of law is involved in it. (2) The defendant paid Rs. 15,000/- as security deposit and it is nothing but in the form of selami. This payment of selami or security deposit by the defendant to the plaintiff is the indication of nature of the interest created to that document and it indicates towards tenancy of the defendant in the suit flat. (3) If it was a licence why there should be such a binding clause that the defendant would give six months prior notice before departure and if he departs earlier the licence fee failing short of six months shall be adjusted against security deposit. Licensee can be asked to vacate at any time and no fee is expected from him or to be adjusted against deposit of security money. (4) It is further clear that plaintiff permitted defendant to use electricity, telephone etc. and these surrounding circumstances clearly indicate that the defendant was not a licensee. (5) The first receipt dated 2.4.96 is Exhibit 'B'. Being Exhibit 'B', it was mentioned "received Rs. 2,500/- only in respect of rent and service charges and charges for furniture at Flat No. A/21 of Saptaparni for the month of April 86." A tenant is inducted into a premises by the landlord or by his agent and at the time of induction he issues a rent receipt in favour of the tenant. (6) The rent receipt dated 2.4.86 marked at Ext. (6) The rent receipt dated 2.4.86 marked at Ext. 'B' shows payment of rent by the defendant in favour of plaintiff regarding suit premises and it proves that an interest in the suit flat was created in favour of defendant in pursuance of which the defendant was put into possession. Several subsequent receipts as found in Ext. 7 are not matter of much importance as it can safely be contended that these were created by the plaintiff and her husband in order to protect their interest and the defendant was to some extent obliged to them and this is why, the defendant raised no protest when in other receipts the word 'rent' was pen red through and the word 'licence fee' was mentioned with handwriting. (7) By a letter dated 2.4.86, the plaintiff asked the defendant to vacate the flat on 1st October, 1989 asking the defendant to send the key of the flat at the time of vacating the flat. It proves that the plaintiff was not in possession of the key of the flat and exclusive possession of the defendant in the said flat was given. 11. The First Appellate Court, therefore, came to the finding about the relationship between the parties on consideration of the intention as expressed in the deed of agreement' as also from other documents and conduct of the parties The basis of finding of the learned Court below is that the requirement of 6 months notice to be given by the licensee before vacating the premises, the stipulation of adjustment if such notice fails short of 6 months and the handing over to the key of the premises to the defendant denuding herself of the power of re-entry within the period of 3 years clearly indicate that a short term tenancy was created by the plaintiff and in order to avoid the rigours of eviction under West Bengal Premises Tenancy Act, the nomenclature "licence" was used. I, therefore, find that there is neither any perversity in the finding nor there was any misapplication of proper tests in the judgment impugned. I, therefore, find that there is neither any perversity in the finding nor there was any misapplication of proper tests in the judgment impugned. In this appeal when the question whether the relationship between the parties is that of a tenancy and landlord or of a licensee or licensor and when such question depends upon the interpretation of agreement or any written instrument as also from the conduct of the parties, no question of law much less the substantive question of law is involved therein. The judgment passed by the First Appellate Court cannot be upset in the Second Appeal by re-appreciation of the evidences, documentary or oral by this Court. I am, therefore, unable to subscribe to the view of Mr. Roychowdhury that the impugned judgment is perverse and bad in law for non-application of proper tests and further that the substantial questions of law are involved in this case. The appeal is, therefore, dismissed without any order as to costs.