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Allahabad High Court · body

2010 DIGILAW 2090 (ALL)

NANHKU v. BRIJ NATH

2010-07-19

KRISHNA MURARI

body2010
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri C. K. Parekh, learned counsel for the petitioners and Sri Raghuvendra Shanker Srivastava, who has put in appearance on behalf of respondent No. 1. 2. Undisputed facts, giving rise to the dispute, are as under. Suit was filed by plaintiff-respondents for a decree of mandatory injunction to direct the defendant-petitioners to hand over vacant possession of the suit property and in the alternative relief of eviction and possession was claimed on the allegations that house shown by letters ‘E’, ‘F’, ‘G’ and ‘H’ in the plaint map belong to defendants which was in a very dilapidated stage and since they were not in a position to carry out repairs immediately hence the plaintiff-respondent No. 1 permitted them to live in the building shown by letters ‘A’, ‘B’, ‘C’ and ‘D’ in the plaint map as a licensee with the condition that they will maintain the same and shall not make any alteration and shall vacate the same within five years. The defendant-petitioners contested the proceedings by filing written statement. During the pendency of the proceedings, the defendant-petitioners filed an application under Order VII Rule 11 read with Section 151 C. P. C. for rejection of the plaint. The application was filed on the ground that since no notice under Section 106 of the Transfer of Property Act was given which was essential before filing of the suit for dispossession as such there was no cause of action and the plaint was liable to be rejected under Order VII Rule 11 C. P. C. Trial Court vide order dated 25.8.2009 rejected the application. The defendant-petitioners went up in revision which has also been dismissed. Aggrieved by the said two orders, present petition has been filed. 3. It has been urged by the learned counsel for the petitioners that since no notice under Section 106 of the Transfer of Property Act was served before filing of the suit, there was no cause of action and the plaint was liable to be rejected and both the Courts below committed material illegality in rejecting the application. 3. It has been urged by the learned counsel for the petitioners that since no notice under Section 106 of the Transfer of Property Act was served before filing of the suit, there was no cause of action and the plaint was liable to be rejected and both the Courts below committed material illegality in rejecting the application. It has further been submitted that if the plaint was not liable to be rejected under Order VII Rule 11 CPC since the suit could not have been filed without serving a notice under Section 106 of the Transfer of Property Act, the plaint ought to have been rejected under Section 151 C. P. C. The next contention advanced on behalf of the petitioners is that suit being vexatious and merit-less and plaint not disclosing any clear right to sue, the Court ought not to have been misled by clever drafting creating an illusion of cause of action and ought to have rejected the plaint. 4. In reply, it has been submitted that since the plaint was filed on the allegations that defendant-petitioners were only licensee and for revoking licence, no notice under Section 106 of Transfer of Property Act is required as such the plaint was not liable to be rejected on the ground that it does not disclose any cause of action. It has further been submitted that since there is a specific provision contained in Order VII Rule 11 prescribing conditions whereunder plaint is liable to be rejected, the provision of Section 151 cannot be invoked for rejection of the plaint. 5. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 6. A perusal of the allegations made in the plaint and in particular paragraph 6 thereof go to show that suit was filed by the plaintiff-respondents on the allegations that defendant-petitioners were permitted to live in the suit property as licensee. 7. The question which arises for consideration is as to whether notice under Section 106 of the Transfer of Property Act is required for revocation of licence and whether suit for ejectment can be filed against a licensee without notice under Section 106 of the Transfer of Property Act. 8. 7. The question which arises for consideration is as to whether notice under Section 106 of the Transfer of Property Act is required for revocation of licence and whether suit for ejectment can be filed against a licensee without notice under Section 106 of the Transfer of Property Act. 8. Section 52 of the Indian Easements Act, 1882 defines license as under : “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 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.” 9. Section 61 of the Indian Easements Act, 1882 prescribed that revocation of a license may be express or implied which necessarily means that it could be either by notice in writing or even without notice impliedly from the acts of grantor. Section 62 of the Indian Easements Act further prescribes the condition that when the license could be deemed to have been revoked. Relevant sub-clause (c) of Section 62 of Indian Easements Act reads as under: “62. License when deemed revoked.—A license is deemed to be revoked: (a) ............................ (b)............................ (c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled.” 10. Section 63 of the Indian Easements Act further prescribes that 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. An analysis of the aforesaid provisions clearly go to show that no notice is required to be given for revocation of a license and where it is for a limited period, it is deemed to be revoked on the expiry of the period. 11. Notice for termination of lease is contained under Chapter V of the Transfer of Property Act pertaining to lease of immovable property. It is, thus, clear that Section 106 of the Transfer of Property Act is applicable in cases of lease and not licence. 11. Notice for termination of lease is contained under Chapter V of the Transfer of Property Act pertaining to lease of immovable property. It is, thus, clear that Section 106 of the Transfer of Property Act is applicable in cases of lease and not licence. Learned counsel for the petitioners has failed to point out any such provisions either in the Transfer of Property Act or in the Indian Easements Act, 1882 prescribing a notice for termination of a license. 12. In view of the above, the first argument advanced by the learned counsel for the petitioners is devoid of any force and not liable to be accepted and both the Courts below have committed no illegality in rejecting the application filed by the defendant-petitioners for rejection of the plaint for want of notice under Section 106 of the Transfer of Property Act. 13. In so far as second argument is concerned that is also devoid of any merits. It is very well-settled that if there is express provision covering a particular topic then provisions of Section 151 C. P. C. cannot be revoked. Reference may be made to the judgment of the Hon’ble Apex Court in the case of Ram Chandra & Sons Sugar Mills (P) Ltd. v. Kanhaiya Lal Bhargava and others, AIR 1966 SC 1899 and Vareed Jacob v. Sosamma Ghevarghese, AIR 2004 SC 3992 , wherein it has been held that inherent powers can be exercised only in cases where circumstances do not fall under any of the rules prescribed in the Code of Civil Procedure. Since Order VII Rule 11 C. P. C. specifically provides for cases in which the plaint could be rejected, the provisions of Section 151 C.P. C. cannot be revoked for the said purpose. 14. In view of the aforesaid facts and discussions, since the suit was filed on the allegation that defendant-petitioners were licensee for a fixed term and have not vacated the suit property despite expiry of the period of licence, no notice under Section 106 of the Transfer of Property Act was required to be given before filing of the suit and it cannot be said that plaint failed to disclose any cause of action and was not liable to be rejected under Order VII Rule 11 C. P. C.. Both the Courts below have rightly rejected the application of the defendant-petitioners. 15. Both the Courts below have rightly rejected the application of the defendant-petitioners. 15. The third contention is also merit-less. A bare reading of the plaint allegations go to show that suit is not vexatious and there is clear right to sue. 16. From the above discussions, the impugned orders do not suffer from any such infirmity and illegality and do not require any interference. 17. The writ petition accordingly fails and stands dismissed in limine. ————