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2013 DIGILAW 490 (UTT)

Wajid Sons Export Limited v. Uma Sah

2013-07-26

PRAFULLA C.PANT

body2013
JUDGMENT : Prafulla C. Pant, J. This appeal, preferred under section 96 of Code of Civil Procedure, is directed against the judgment and decree dated 18.06.2003, passed by District Judge, Nainital, in Civil Suit No. 54 of 1999, whereby said court has dismissed the suit with costs. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Brief facts of the case are that the plaintiff/ appellant instituted suit no. 54 of 1999 with the pleading that plaintiff owns the double storied building known as Waldorf Hotel, situated in Mallital, Nainital, which he purchased vide registered sale deed dated 20.03.1989 from its erstwhile owners Shri A.K. Goyal and others. The building in suit is an old construction which has completed 90 years. It is further pleaded that Suites no. 2, 17, 18 of the building are in possession of defendant Smt. Uma Sah (wife of Indralal Sah) who has started wrongly claiming herself to be tenant of the aforesaid three suites on annual rent of Rs. 9,000/- per year, from the time of erstwhile owner A.K. Goyal. After the property was purchased by the plaintiff he asked the defendant to vacate the premises but she filed injunction suit no. 98 of 1989 before Civil Judge, Nainital, and obtained decree of permanent injunction against the present plaintiff directing him not to forcibly dispossess her. She (defendant Uma Sah) instituted another case no. 8 of 1993 before Rent Control and Eviction Officer (District Supply Officer), Nainital, under Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (for short U.P. Act XIII of 1972) seeking allotment of the aforesaid suites no. 2, 17 and 18 in her favour. However, said case was dismissed in default of parties on 18.04.1996, as such the defendant is allegedly occupying the premises in question as an unauthorized occupant. Though, the plaintiff filed Civil Appeal No. 53 of 1996 against the decree dated 19.12.1991, passed by the trial court in Suit No. 98 of 1989, but the same was disposed of vide order dated 03.07.1999, with the observation that the plaintiff can seek remedy of recovery of possession by adopting legal procedure, but the occupant shall not be dispossessed forcibly. Hence the present suit was filed by the plaintiff with the plea that the status of the present defendant was only that of a licensee. Hence the present suit was filed by the plaintiff with the plea that the status of the present defendant was only that of a licensee. It is further pleaded that once the plaintiff after purchasing the property demanded possession of the premises, the license stood terminated and the defendant is bound to deliver the possession of the property in suit. It is also alleged in the plaint by the present plaintiff that the defendant is running her business in the premises in question, and liable to pay mesne profits @ Rs.600 per day. The plaintiff prayed for decree of mandatory possession directing the defendant to vacate the premises and restore the possession of the plaintiff. The perpetual injunction was also sought directing the defendant not to cause damage to the property in question, and mesne profits were also claimed @ Rs.600 per day. [Practically the plaintiff has sought relief of possession in the regular suit (without paying proper court fee) under the garb of relief of injunction]. 4. Defendant Uma Sah contested the suit, and filed her written statement. She did not specifically deny the fact that present plaintiff purchased the property in suit from erstwhile owner A.K. Goyal and others, nor she denied that the building is old one. However, she pleaded that she is tenant of rooms no. 2, 17 and 18 of Waldorf Hotel @ Rs.9,000/- per annum since 1979 which fact was known to plaintiff when he purchased the property. She further pleaded that the plaintiff is bound by the relationship agreed between the present defendant and erstwhile owner A.K. Goyal. It is alleged by the defendant that plaintiff made unsuccessful bid to oust the defendant through his musclemen on which she filed a suit for perpetual injunction before Civil Judge, Nainital, and obtained decree against the present plaintiff not to evict her forcibly. Smt. Uma Sah (defendant) further pleaded that though there is no allotment order in her favour under U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, but the principle of Estoppel protects her status as tenant as against Shri A.K. Goyal erstwhile owner and his successor. She claimed her occupation as legal. She admitted that she runs school in the premises in question but pleaded that the same is not meant for business. She claimed her occupation as legal. She admitted that she runs school in the premises in question but pleaded that the same is not meant for business. She further pleaded that the premises in question cannot be said to be vacant nor the defendant is liable to vacate the same, nor liable to pay any mesne profits. 5. On the basis of the pleadings of the parties the trial court framed following issues:- (i) Whether the plaintiff is owner of the property in suit shown by red colour in the plaint map? (ii) Whether the defendant is lawful tenant of the plaintiff as alleged by her? (iii) Whether the suit is barred by limitation? (iv) Whether the suit is barred by Section 41 of Specific Relief Act? (v) To what relief, if any, the plaintiff is entitled? 6. After recording evidence of the parties, the trial court found that plaintiff is owner of the property in suit. It further found that the defendant is tenant in the accommodation in question. The trial court decided rest of the issues also in favour of the defendant and dismissed the suit with costs. Hence, this appeal. 7. Following are the points of determination on which the parties argued before this Court in this appeal:- (i) Whether the defendant was licensee and not the tenant as held by the trial court? (ii) Whether the plaintiff failed to prove that the property in suit is a hotel, if so, its effect? (iii) Whether the defendant without being inducted as a tenant under the allotment order under U.P. Act XIII of 1972, is an unauthorized occupant in the building in suit, if so, its effect? Answer to points of determination no. 1 to 3. 8. Since, all the points of determination are interlinked, as such the same are being answered together. It is not disputed that the plaintiff purchased the building in suit known as Waldorf Hotel from erstwhile owner A.K. Goyal and others through sale deed dated 20.03.1989. It is also not disputed that the building is more than 90 years old. It is also not disputed that the defendant was in occupation of suites no. 2, 17 and 18 of the building on the date when the plaintiff purchased the property. The dispute relates as to the status of occupation of the defendant in the house purchased by the plaintiff. It is also not disputed that the defendant was in occupation of suites no. 2, 17 and 18 of the building on the date when the plaintiff purchased the property. The dispute relates as to the status of occupation of the defendant in the house purchased by the plaintiff. The plaintiff has pleaded that the defendant was licensee, and her license stood terminated after the plaintiff asked her to vacate the premises. On the other hand, the defendant specifically pleaded that she was tenant of the erstwhile owner of the property, and as such continued in occupation of the building as tenant. 9. In support of his case, on behalf of the plaintiff P.W.1 Abdul Qadir was examined. On the other hand, in support of the defendant D.W.1 Uma Sah got herself examined. Both the parties filed documentary evidence in support of their cases but there is nothing on the record in the form of license deed or lease deed. There are five receipts of payment issued by the erstwhile owner of the property filed by the defendant per list 24C before the trial court. It is argued on behalf of the defendant/ respondent that the receipts relate to the payment of rent paid to the erstwhile owner of the property. On the other hand, referring to the same document it is contended on behalf of the plaintiff/ appellant that the receipts clearly show that the amount accepted from the defendant was towards ‘lodging charges’. The trial court taking note of the fact that the defendant was continuing in possession since 1979 i.e. for a period of ten years before the plaintiff purchased the property in 1989, and she (defendant) was running school in the premises as such character of her occupation was not that of licensee but of the lessee (tenant). 10. Explanation to sub-clause (2) of clause (a) of Section 3 of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 provides that an occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant. Undoubtedly, an occupant in a hotel or lodging house is a licensee of the owner of the hotel or lodging house, and the license can be terminated without following the procedure required for termination of lease or tenancy. Undoubtedly, an occupant in a hotel or lodging house is a licensee of the owner of the hotel or lodging house, and the license can be terminated without following the procedure required for termination of lease or tenancy. At this stage the important question arises as to whether the building in suit is actually a hotel/lodging house or not. There is no license filed by the plaintiff issued by the Municipal Board Nainital, showing that in respect of building known as ‘Waldorf Hotel’ the plaintiff was given license to run the same as lodging house or a hotel. P.W.1 Abdul Qadir has admitted that in the building in suit, when the same was purchased by the plaintiff, office of Statistical Department of the State, and office of U.P. Electricity Board were also running in different portions. It is also not disputed that the defendant was running school in the disputed part of the plot. In the circumstances, this Court is of the view that the trial court has not erred in law in holding that the nature of occupation of the defendant in the disputed premises is that of a tenant and not of a licensee. 11. On behalf of the appellant (plaintiff) attention of this Court is drawn to copy of letter dated 15.05.1995 (paper no. 37C/2 in the lower court record) written by defendant to the Municipal Board, Nainital, requesting for cancellation of the license of the plaintiff to run a lodging house, and it is contended that said document indicates that defendant admits that there had been a lodging license with the plaintiff. However, on carefully going through said document, this Court finds that the request made by the defendant is to cancel the license ‘if at all issued’. The expression ‘if at all issued’ in the prayer clause of the above mentioned letter addressed to Municipal Board shows that the defendant was not sure if the plaintiff had any license to run lodging house. Apart from this, paper no. 32C in the lower court record which is certificate dated 24.07.1990, issued by Medical Officer Health, Municipal Board, Nainital, shows that suits no. 2, 17 and 18 of Waldorf Hotel Mallital, Nainital, were not being used as lodging house. 12. Apart from this, paper no. 32C in the lower court record which is certificate dated 24.07.1990, issued by Medical Officer Health, Municipal Board, Nainital, shows that suits no. 2, 17 and 18 of Waldorf Hotel Mallital, Nainital, were not being used as lodging house. 12. Having re-appreciated the entire evidence on record, this Court concurs with the trial court that actually the defendant was inducted as a tenant by erstwhile owner of the building (Waldorf Hotel) in suites no. 2, 17, 18, and the suites in question of Waldorf Hotel were not being used as a hotel or a lodging house. In other words, the plaintiff failed to prove that the disputed part in occupation of the defendant was being used as hotel or lodging house. Therefore, the defendant cannot be held a licensee as alleged by the plaintiff. 13. As far as, induction of defendant as tenant by the erstwhile owner of the building is concerned, it is undoubtedly established on record that the defendant was inducted in suites no. 2, 17, and 18 by the erstwhile owner of the building without there being any allotment order from competent authority issued under U.P. Act No. XIII of 1972. Needless to say that the building in question is admittedly 90 years old, and if it is found that building is not used as hotel or lodge, the provisions of U.P. Act No. XIII of 1972, are applicable to it. Section 11 of said Act prohibits letting of a building without allotment order. Section 13 of the Act provides that if any landlord or tenant ceases to occupy the building, no person shall occupy the same without allotment order under section 16 of the Act as a tenant and if such a tenant is inducted, he/she would be an unauthorized occupant of such building. The plaintiff has relied on said provision to take benefit of it. At this stage, it is pertinent to mention here that plaintiff is seeking relief of injunction, and in such a suit he must come with clean hands. If the plaintiff or his predecessor has inducted any tenant against the provision of law, he cannot be allowed to take benefit of the same by taking shelter of Section 13 of the Act. 14. If the plaintiff or his predecessor has inducted any tenant against the provision of law, he cannot be allowed to take benefit of the same by taking shelter of Section 13 of the Act. 14. Though, in view of principle of law laid down in Nutan Kumar and others vs. II Additional District Judge and others (2002) 8 SCC page 31, an agreement of lease in violation of U.P. Act No. XIII of 1972, is binding between the parties, but for the purposes of the Act, such lessee would be unauthorized occupant/ trespasser. However, in the present case said case law does not help the plaintiff for the reason that plaintiff has not sought any relief of ejectment of the defendant under the aforesaid Act. The plaintiff in the present case has come up with a story of a occupant (defendant) in a hotel. 14. Therefore, point of determination no. 1 is answered holding that plaintiff failed to prove that the defendant was a mere licensee. Second point of determination is decided holding that plaintiff failed to prove that suites no. 2, 17 and 18 of the building in suit were being used as a hotel. And third point of determination is decided with the finding that the defendant was a tenant inducted by erstwhile owner of the building against the provisions of U.P. Act XIII of 1972, and as such she is unauthorized occupant for any proceeding initiated under said Act. 16. For the reasons as discussed above, this Court finds no force in this appeal which is liable to be dismissed. Accordingly, the appeal is dismissed. However, costs easy.