Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 673 (CAL)

Rekha Mukherjee v. Anjana Aditya

2007-08-31

SADHAN KUMAR GUPTA

body2007
Judgment :- (1) THIS Second Appeal has been preferred against the judgment dated 25. 2. 2005, as passed by the learned Additional District Judge, 2nd Fast track Court, Alipore in Title Appeal No. 134 of 2004. (2) CASE of the appellants is that one Dr. Goutam Narayan Aditya, the husband of Smt. Anjana Aditya, the defendant/respondent, was a licensee in respect of the suit premises under the original plaintiff Gopal Mukherjee. Said Gopal Mukherjee was the absolute owner of premises No. 30a, Arya samity Road, P. S. Behala. The original defendant-Dr. Goutam Narayan Aditya, being in need of accommodation, approached the said original plaintiff Gopal mukherjee in the month of September, 1993 to occupy the suit premises as a licensee for a period of three years. The original plaintiffs/landlord agreed to such proposal and an agreement Of leave and license was entered in between the parties on 1. 10. 1993. It was agreed that the license was granted for a period of three years on terms and conditions stated therein and at the time of such induction, the original defendant-Dr. Goutam Narayan Aditya assured the original plaintiff that he would purchase a house within a short time and vacate the premises. Relying on such request, the original plaintiff granted leave and license to the said defendant and on the expiry of the period, as stipulated in the said agreement, said original defendant delivered possession of the said flat to the said Gopal Mukherjee. But as Dr. Goutam narayan Aditya, the defendant, failed to secure alternative accommodation, so on his request, the plaintiff-Gopal Mukherjee agreed to allow him to occupy the said flat as a licensee from 1st October, 1996 for a further period of three years ending on 30. 9. 1999. At that time, on execution of Used of license, Dr. Aditya assured that he would vacate the premises as per terms stated in the said agreement. (3) AS after the expiry of the period, Dr. Aditya did not vacate the premises in question and as the plaintiff was in need of accommodation, so he asked Dr. Aditya to vacate the suit flat. But Dr. Aditya, in contravention of the said agreement, raised a false claim of tenancy. Since the premises in question was not vacated as per terms of the said agreement, the plaintiff-Gopal Mukherjee issued a lawyers letter dated 3. 9. 1999 asking the defendant dr. Aditya to vacate the suit flat. But Dr. Aditya, in contravention of the said agreement, raised a false claim of tenancy. Since the premises in question was not vacated as per terms of the said agreement, the plaintiff-Gopal Mukherjee issued a lawyers letter dated 3. 9. 1999 asking the defendant dr. Aditya when he would deliver vacant possession of the flat in question. In spite of receipt of the said notice, said Dr. Aditya did not vacate the suit flat. Under such circumstances, the plaintiff-Gopal Mukherjee filed the suit for evicting the defendant/licensee from the suit premises. (4) INITIALLY, the suit was decreed ex-parte. But the wife of Dr. Aditya filed a petition under Order IX Rule 13 of the Code of Civil Procedure and on such prayer the ex-parte decree was set aside and Smt. Anjana Aditya, the wife of Dr. Aditya, was allowed to contest the suit by filing written statement. In the written statement she claimed that the suit was not maintainable and the allegations, as made in the plaint, were all denied on material points. According to this defendant Anjana Aditya, her husband was inducted in the suit flat as a tenant. Said Dr. Aditya never possessed the suit premises as a licensee for three years, as claimed by the plaintiff. According to her, the agreement of license, as submitted by the original plaintiff/landlord was nothing but a camouflage and same was executed at the instance of the original plaintiff only to avoid the rigour of tenancy law. According to her, neither her husband Dr. Aditya nor she or her daughters were known to the plaintiff from before prior to their induction in the suit premises. It is the specific case of the defendant that Dr. Aditya did not occupy the suit premises as a licensee. According to her, Dr. Aditya and subsequently she and her daughters are tenants in respect of the suit premises. It has been claimed by Anjana Aditya that the whereabouts of the original defendant was not known for more than 10 years and she and her two daughters have inherited the tenancy and living there in the suit premises as a monthly tenant and they are in exclusive possession of the same on and from 1. 10. 1993 as tenant. She has categorically denied that she ever surrendered the suit flat to the original plaintiff. According to her Dr. 10. 1993 as tenant. She has categorically denied that she ever surrendered the suit flat to the original plaintiff. According to her Dr. Aditya was compelled to put his signature at the instance of the original plaintiff by way of exercising undue influence. She has claimed that she is paying Rs. 1300/-per month towards rent in favour of the original plaintiff and thereafter to the present plaintiff. She has further claimed that the plaintiff is not entitled to get decree for recovery of possession, as claimed in the suit and she prayed for dismissal of the suit. (5) UPON the above pleadings, the learned Court below framed several issues and thereafter he was pleased to hold that the plaintiff could establish that the original defendant and thereafter the added defendants were using the suit premises on the basis of the license and since the said license was revoked, the plaintiff was entitled to get a decree for recovery of possession by way of evicting the defendants from the suit premises. (6) BEING aggrieved by the said judgment, the added defendants preferred an appeal. The learned First Appellate Court in its judgment was of the opinion that in fact Dr. Aditya was inducted in the suit premises as a tenant and he was not a licensee, as claimed by the plaintiff. According to him, being the wife and daughters of said Dr. Aditya, the present defendants are entitled to the protection, as provided in the Rent Act and they are not liable to be evicted on the basis of the alleged grant of license in favour of dr. Aditya by the original plaintiff. Learned First Appellate Court was pleased to allow the said appeal and set aside the judgment, as passed by the learned court below. (7) BEING aggrieved by and dissatisfied with the said judgment of the learned First Appellate Court, this Second Appeal has been preferred. At the time of admission of the appeal, learned Division Bench was pleased to frame the following substantial questions of law: (a) Whether the learned Court of Appeal below committed substantial error of law in dismissing the suit on the ground that exhibit-1 is in reality an agreement for tenancy by not applying the appropriate tests, which are required to be followed in construing this type of documents? (8) ON the basis of said question, as framed in connection with this appeal, submissions have been made on behalf of the parties by the learned advocates for both the sides. (9) ADMITTEDLY, one Gopal Mukherjee was the owner of the suit premises. It is not disputed that Dr. Goutam Narayan Aditya was inducted into the suit premises by the original plaintiff Gopal Mukherjee. There is also no dispute that in the year 1993 said induction took place and at that time an agreement deed was prepared in respect of the said induction. Said agreement deed has been marked as exhibit in the suit. ln the said agreement, Dr. Aditya undertook to vacate the suit premises after three years. It is the case of the plaintiff that Dr. Aditya could not arrange for accommodation elsewhere, so on his request he was allowed to continue in the said premises by Gopal mukherjee and in recognition of that another agreement was executed by the parties wherein it was stated that after the expiry of three years from that date of execution, Dr. Aditya would vacate the suit premises. Since after the expiry of the period, the suit premises was not vacated by Dr. Aditya, so notice was served upon him by Gopal Mukherjee asking him to vacate the suit premises. As in spite of that, Dr. Aditya did not vacate the suit premises, so the suit was filed for his eviction. According to the plaintiff, Dr. Aditya was inducted in the suit premises as a licensee and said license was renewed after three years on the request of Dr. Aditya. Both those agreements, which were executed in the year 1993 and 1996, were marked as exhibits without any objection. There is no dispute that Dr. Aditya signed in those two agreements. (10) LEARNED Advocate for the plaintiff/appellant argued that from the plain reading of those agreement deeds, it is clear that said Dr. Aditya was inducted into the suit premises as a licensee. Since the license has been terminated by the licensor/plaintiff by way of serving a notice, said Dr. Aditya and his family members are not entitled to stay in the suit premises and they are liable to be evicted and possession of the suit premises should be handed over in favour of the licensor/plaintiff. Since the license has been terminated by the licensor/plaintiff by way of serving a notice, said Dr. Aditya and his family members are not entitled to stay in the suit premises and they are liable to be evicted and possession of the suit premises should be handed over in favour of the licensor/plaintiff. It is the settled position that in case of a license, it is always open to be terminated at will by the licensor after the expiry of the period for which license was granted. Since admittedly a notice terminating the license has been served upon the said alleged licensee, so there cannot be any problem for the plaintiff in getting a decree for recovery of possession after evicting the licensee from the suit premises. As such, he argued that the learned Trial Judge was perfectly justified in passing the decree for eviction. (11) ADMITTEDLY, the learned Trial Court in its judgment was pleased to hold that in fact Dr. Aditya was inducted in the suit premises by the plaintiff as a licensee and as such, as the notice of eviction was served, so the learned Trial Court was pleased to pass a decree for eviction of the licensee in respect of the suit premises. This finding of the learned Trial Court was reversed by the learned First Appellate Court, who by its judgment was pleased to hold that Dr. Aditya was not inducted as a licensee in respect of the suit premises. He was of the opinion that in fact those two agreement deeds, created tenancy in favour of Dr. Aditya and as such, without following the procedure, as provided in the Rent Act for eviction of a tenant, no decree of eviction can be passed in the suit, as filed by the plaintiff. This finding of the first Appellate Court is under challenge so far as this Second Appeal is concerned. So the main question that is to be considered, so far as this hearing is concerned, is, whether the Exhibit-1 was in reality an agreement for tenancy or in fact it was an agreement for creation cf license. This finding of the first Appellate Court is under challenge so far as this Second Appeal is concerned. So the main question that is to be considered, so far as this hearing is concerned, is, whether the Exhibit-1 was in reality an agreement for tenancy or in fact it was an agreement for creation cf license. It is the settled position that in order to come to a conclusion as to whether a particular document is lease or license, it is necessary that instead of relying on its form, the substance, as made out in the body of the agreement along with other surrounding circumstances, should be looked into. It is necessary to do so in order to give protection to the tenants, as provided in the Rent Act. This procedure is also to be followed to prevent the landlords to take a shortcut measure to oust a tenant by describing him as a licensee in the document in question. In other words, if it appears that an attempt has been made to prepare a document by exercising camouflage in order to give a colour of a license to an agreement, which was in fact a tenancy agreement, then the Court has every right to interfere. It is necessary to do so when it appears to the Court that the owner/landlord in order to avoid the rigour of the Rent Act has made an attempt to give the colour of license to an agreement which in fact amounts to an agreement for tenancy. In this respect the decision reported in AIR 1989 SC 1816 (Capt. B. V. Dsouza v. Antonio Fausto fernandes) is very much relevant. ln the said decision the Apex Court held that "for ascertaining whether a document creates a license or lease, the substance of the document must be preferred to the form. It is not correct to say that exclusive possession of a party is irrelevant but at the same time it is not conclusive. The othertests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations". It is not correct to say that exclusive possession of a party is irrelevant but at the same time it is not conclusive. The othertests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations". It has further been held by the Apex Court in the said decision to the effect that "it is well settled that the main purpose of enacting the Rent statutes is to protect the tenant from the exploitation of the landlord, who being in the dominating position is capable of dictating his terms at the inception of the tenancy; and the Rent Acts must receive that interpretation which may advance the object and suppress the mischief. By adopting a different approach the Rent laws are likely to be defeated altogether". It is now the settled position that all the surrounding circumstances should also be taken into consideration by the Court while coming to the conclusion as to whether a particular document is lease or license. The Court should also look into the relationship of the parties in order to suggest that there was probability of granting a license in favour of that particular person. (12) SAME principle has been laid down by the Honble Apex Court in the decision reported in 2004 (3) SCC 595 (C. M. Beena and Anr. v. P. N. Ram chandra Rao). (13) LEARNED Adovcate for the appellant cited decision reported in AIR 1999 SC 2607 (Delta International Ltd. v. Shyam Sundar Ganeriwalla) and air 1988 SC 184 (Khalil Ahmed Basir Ahmed v. T. S. Saranpurwala). In both of the decisions it appears that it was clearly observed by the Apex Court that instead of relying upon the form of a document, it is necessary to look into the intention of the parties after reading the document as a whole. So from those decisions, as mentioned above, cited by both the sides, it is very much clear that form of a document is immaterial in holding a particular document as lease or license. In order to ascertain the true character of the document, it is necessary to read the entire document and to gather from the other surrounding circumstances as to what was the intention of the parties in creating the said document. In order to ascertain the true character of the document, it is necessary to read the entire document and to gather from the other surrounding circumstances as to what was the intention of the parties in creating the said document. (14) IF we look into the evidence of the parties, then it will appearthat the erstwhile owner Gopal Mukherjee, since deceased, in his evidence clearly admitted that Dr. Aditya approached him for taking the suit premises on rental basis. Of course an attempt has been made that this proposal did not materialize. But this admission of the erstwhile owner of the premises sufficiently indicates that the intention of Dr. Aditya was to take the suit premises on rental basis as a tenant and not as a licensee, as claimed by the plaintiff. (15) THAT apart, from the evidence on record, it appears that both the original plaintiff and his son clearly admitted that Dr. Aditya and his family members were not known to them when he was allegedly permitted to occupy the suit premises as a licensee. It is difficult to accept that the plaintiff allowed an unknown person to occupy his flat as a licensee for a period of not less than three years. It is against the normal human conduct. In this respect the decision reported in AIR 1989 SC 1816 (supra) is very much relevant. This was also a ground for the Apex Court to disbelieve the claim of grant of license, as claimed by the landlord. (16) ANOTHER fact, which leads us to the conclusion that in all probability, by the alleged transaction tenancy was created, is the fact that exclusive possession of the suit premises was handed over in favour of Dr. Aditya and his family members. Leanred Advocate for the plaintiff/appellant argued that in the document it was clearly mentioned that the plaintiff had the right of inspection of the premises at any time. By this he wanted to impress that exclusive possession was not handed over to Dr. Aditya and the plaintiff retained his possession and control in respect of the said premises. According to the learned Advocate, this fact certainly suggests that license was granted in favour of Dr. Aditya so far as the suit premises is concerned. By this he wanted to impress that exclusive possession was not handed over to Dr. Aditya and the plaintiff retained his possession and control in respect of the said premises. According to the learned Advocate, this fact certainly suggests that license was granted in favour of Dr. Aditya so far as the suit premises is concerned. According to him, since the plaintiff retained the control and possession of the suit premises with him, so it must be said that by the impugned document a license was granted in favour of Dr. Aditya and not a lease, as claimed by his wife and daughters. In this respect he has cited decision reported in 1995 Supp. (1)SCC 306 (Swam Singh v. Madan Singh). I have gone through the said decision. It appears that in the case before the Apex Court in the document, which was under consideration, it was specifically mentioned that possession and control shall remain with the owner. Similarly, in the case reported in AIR 1996 Delhi 165 (M/s. Jagjit Cotton Textile Ltd. v. Col. A. K. Malhotra), as cited by the learned Advocate for the appellant, it appears that there also clear restriction was imposed in the document while entering into the agreement. To be more precise we can quote the condition, as imposed by the landlord and as it has been mentioned in the said decision at Paragraph-5, in order to understand the position. It runs as follows:- "that notwithstanding the said permission and the license or anything contained in the presents, it is agreed that the licensor shall continue to have full possession and controlof the said premises and fittings and telephone and a free and unrestricted right of entry into and use of the said premises. " (17) FROM this, it is very much clear that there was clear restriction in respect of enjoyment of the premises in question. As such, I am of opinion that these decisions do not help the cause of the plaintiff/appellant at all. (18) MR. Banerjee, learned Advocate for the appellant strongly relied on the decision reported in 1995 Supp. (1) SCC 306 (supra) in support of his contention that where a document is unambiguous, there is no need to travel beyond the document and look at the attendant circumstances together with the intention of the parties. By citing the said decision of the Apex Court, Mr. (1) SCC 306 (supra) in support of his contention that where a document is unambiguous, there is no need to travel beyond the document and look at the attendant circumstances together with the intention of the parties. By citing the said decision of the Apex Court, Mr. Banerjee argued that since there is no ambiguity in the document in question, so it is not permissible for the Court to travel beyond the document and look at the attendant circumstances and also to consider the intention of the parties. But I regret, I cannot agree with this argument. In order to take benefit of this decision, first of all it should be held that the document in question is unambiguous. In the said decision the fact before the Honble apex Court was not similar with the fact in the case in our hand. There, as already pointed out, it was clearly mentioned in the document that the possession and control would remain with the owner. I have already pointed out that so far as Exhibit -1 is concerned, there is no such clear restriction. As such, in view of this decision, the settled position of law, as enunciated by the Honble Apex Court in different decisions, as cited above, cannot be ignored. The document in question does not clearly indicate in favour of license since exclusive possession was handed over. The other surrounding circumstances, as discussed above, also indicate creation of tenancy. So, the Exhibit -1 cannot be said to be unambiguous, as claimed by the learned advocate for the appellant. (19) MR. Banerjee, learned Advocate for the appellant, in support of his contention that the Exhibit -1 is nothing but a license, also relied upon the decision reported in AIR 1981 Patna 142 (Prakash Rao v. Bihar State Road transport Corporation and Anr). It is correct that the learned Single Judge in the said decision, after consideration of the document in question, came to the conclusion that by it a license was granted and not a lease. But it appears from the said decision that the Corporation allowed the plaintiff to run the refreshment room under its control and the Corporation had an authority to inspect and check the manner in which the refreshment room was being run by the plaintiff and also had authority to remove the employees of the plaintiff. But it appears from the said decision that the Corporation allowed the plaintiff to run the refreshment room under its control and the Corporation had an authority to inspect and check the manner in which the refreshment room was being run by the plaintiff and also had authority to remove the employees of the plaintiff. As such, learned Single Judge was of the opinion that in view of this absolute restriction, it must be held that the document created a license and not a lease. It is needless to repeat that so far as present case is concerned, there is no such restriction in the Exhibit-1 and as such, this decision is in no way supports the claim of Mr. Banerjee. (20) THEREFORE, from my above discussion, after perusal of the entire document including the terms arid conditions, as laid down in it and on consideration of the evidence of the erstwhile plaintiff and other surrounding circumstances, as discussed above, I am of opinion that by virtue of the exhibit -1 a tenancy was created In favour of Dr. Aditya and he was not at all inducted as a licensee in the suit premises, as claimed by the plaintiff. As such, the suit for eviction, as filed by the plaintiff against Dr. Aditya and his family members in respect of the suit premises, is clearly not maintainable and I have got no hesitation to hold that there is reason to believe that the exhibit -1 was a camouflage document and was created in order to avoid the rigour of the Tenancy laws. In this respect I fully concur with the finding of the learned First Appellate Court. (21) MR. Banerjee, learned Advocate for the appellant argued that it appears from Exhibit - 6 that Dr. Aditya admitted in it that he was inducted as a licensee in the suit premises. It appears that Exhibit -6 is an application filed by Dr. Aditya in a Matrimonial Suit that was pending in between him and his wife, the present defendant who is contesting the suit. It is not known as to why such a statement was made by Dr. Aditya jeopardising the interest of his family. It is the admitted position that the matrimonial relationship in between Dr. Aditya and his wife is not at all cordial and for that reason a matrimonial Suit was filed. So the interest of Dr. It is not known as to why such a statement was made by Dr. Aditya jeopardising the interest of his family. It is the admitted position that the matrimonial relationship in between Dr. Aditya and his wife is not at all cordial and for that reason a matrimonial Suit was filed. So the interest of Dr. Aditya and his wife and the daughters are in clash at present and as such, any statement which has been made by Dr. Aditya in another legal proceeding, cannot have any binding effect on his wife and daughters. (22) LEARNED Advocate for the appellant submitted that the wife of Dr. Aditya has got no locus-standi to contest the suit since she has made contradictory statements regarding the whereabouts of Dr. Aditya. There may be some discrepancies in the statement made by the lady. But that cannot be a ground to hold that she and her daughters have got no locus-standi to contest the suit in absence of Dr. Aditya. It is the case of the defendants that whereabouts of Dr. Aditya is now not known and as such they are entitled to contest the suit, as filed by the plaintiff. It is the settled position that in absence of original tenant, his legal representatives, particularly the wife and children are entitled to enjoy the tenancy right. As such, it is always open for them to contest the suit for eviction, as filed by the landlord against their husband/father. In fact, if we look into the order passed by the learned Court below, then it will appear that on the prayer of the wife of Dr. Aditya, she was allowed to file written statement and contest the suit. This order was not challenged before any higher forum and as such, by virtue of the said order, the wife and children of Dr. Aditya were certainly entitled to contest the suit for eviction, which was filed against them. Since they have acquired interest in the tenancy in respect of the suit premises. there cannot be any bar for them to contest the said eviction suit effectively. Thus. the contention of the learned Advocate for the appellant/ plaintiff, in this respect is not accepted. (23) THEREFORE, from my above discussion, I am of opinion that the learned first Appellate Court was perfectly justified in holding that by virtue of exhibit -1 a tenancy was created and Dr. Thus. the contention of the learned Advocate for the appellant/ plaintiff, in this respect is not accepted. (23) THEREFORE, from my above discussion, I am of opinion that the learned first Appellate Court was perfectly justified in holding that by virtue of exhibit -1 a tenancy was created and Dr. Aditya was not inducted as a licensee in the suit premises, as claimed by the plaintiff. The tests which are required to be followed in coming to such a conclusion are all in favour of holding the agreement for creation of tenancy, as discussed above. As such, I find no reason to interfere with the finding, as arrived at by the learned First Appellate court in this respect. The question, as framed, is answered accordingly. (24) IN the result, the appeal and the same is dismissed on contest. The judgment dated 25th February, 2005, as passed by the learned Additional district Judge, Fast Track 2nd Court, Alipore in Title Appeal No. 134 of 2004 is confirmed.