Gujarat High Court
Jamnadas Mangaldas Sharma vs Rajeshkumar Somabhai Parekh on 9 July, 2019
Equivalent citations: AIRONLINE 2019 GUJ 135
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SA/267/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 267 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/SECOND APPEAL NO. 267 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
NO
made thereunder ?
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JAMNADAS MANGALDAS SHARMA
Versus
RAJESHKUMAR SOMABHAI PAREKH
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Appearance:
MR ANKIT N DIWANJEE(8683) for the Appellant(s) No. 1
MR RAJENDRA K GOLANI(2125) for the Appellant(s) No. 1
MS ADITI S RAOL(8128) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/07/2019
CAV JUDGMENT
1 This Second Appeal under Section 100 of the Code of Civil Page 1 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT Procedure, 1908 (for short, "the C.P.C."), is at the instance of the original defendant (judgement debtor) and is directed against the judgement and order passed by the 8th Additional District Judge, Vadodara, dated 10th July 2018 in the Regular Civil Appeal No.100 of 2018 arising from the judgement and decree of eviction passed by the 9th Additional Civil Judge, Vadodara, dated 22nd January 2018 in the Regular Civil Suit No.320 of 2016 filed by the respondent herein - original plaintiff.
2 For the sake of convenience, the appellant herein shall be referred to as the 'original defendant' and the respondent herein shall be referred to as the 'original plaintiff'.
3 The plaintiff instituted the Regular Civil Suit No.320 of 2016 with the following prayers:
"It is humbly prayed that, (1) As the Defendant has illegal possession of the shop No.4 after 30/04/15 which is of the ownership, possession, and occupancy of Ithe Plaintiff, situated in city survey record No.22/1sectionB of city survey No.89 in the area of Kothi crossroads admeasuring 90 sq.ft., Your Honour may be pleased to pass the decree directing the actual possession of the said suit property from the Defendant.
(2) As suit property has been shut by applying locks of wePlaintiff and Defendant, your honour may be pleased to pass permanent injunction and hold that, no one shall have right to use or cause to use, break or cause to break the locks of the suit property until the possession of the said property is assigned to the Plaintiff by the Defendant.Page 2 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT
(3) Your Honour may be pleased to get the amount of loss of the rent at the rate of Rs.20,000/ per month with effect from 30/04/15 i.e. since 01/05/15 to be recovered from the Defendant. Your Honour may be further pleased to pass the decree directing to recover the amount of loss of the rent at the rate of Rs.50,000/ per month from the Defendant personally or from his property till handing over the possession of the property since the date of Suit.
(4) To award the cost of this suit from the Defendant.
(5) Your Honour may be pleased to pass any other relief which may deem just and lawful to this court."
4 It appears from the pleadings of the parties that the plaintiff is the lawful owner of the suit property (shop) bearing No.4 admeasuring 90 sq. ft. situated at Raopura, Kothi four Rasta, Vadodara. The shop was let out by the plaintiff to the defendant for the purpose of running a restaurant for a period of eleven months by entering into an agreement dated 6th June 2014. The agreed rent was fixed at Rs.18,000/ per month. On the expiry of the period of eleven months, the plaintiff declined to renew the agreement for a further period. He called upon the defendant to hand over the vacant and peaceful possession of the shop. In such circumstances, the plaintiff issued a legal notice dated 21st April 2016 to the defendant. However, as, ultimately, the possession was not handed over, the plaintiff had to institute the suit seeking a decree of eviction.
5 The defendant appeared before the Civil Court and filed his Page 3 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT written statement at Exhibit : 15. He contended that he was in possession of the property i.e. the shop since 2008 in his capacity as a lawful tenant of the suit property. He also contended that the suit property was first let out in his favour at a standard rent of Rs.7,500/. The defendant also contended that he had paid Rs.3 Lakh as a deposit to the plaintiff and it was agreed between the parties that the plaintiff would transfer the suit property in favour of the defendant by way of a sale deed and the amount of Rs.3 Lakh paid as deposit would be adjusted towards the sale consideration.
6 Having regard to the pleadings of the parties, the Civil Court framed the following issues:
"1. Whether the plaintiff proves that he is the owner of the disputed property?
2. Whether plaintiff proves that the defendant is illegally using his rented premises after the lapse of the rent agreement?
3. Whether the defendant proves that they are the owners of the disputed property?
4. Whether the defendant proves that they have reached an agreement with the plaintiffs wherein the defendants have now become the owners of the disputed property?
5. Whether the defendant proves that they have paid more than 6 lakhs as the price for disputed property?
6. Whether the plaintiff proves that he is entitled to the relief claimed for?
7. What decree and order?"
7 The issues framed by the Trial Court came to be answered as under:
"1. Issue No.1 In the Affirmative Page 4 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT
2. Issue No.2 In the Affirmative
3. Issue No.3 Held redundant not answered
4. Issue No.4 In Negative
5. Issue No.5 In Negative
6. Issue No.6 Partly in affirmative
7. Issue No.7 As per final order."
8 The Civil Court, upon appreciation of the oral as well as the documentary evidence on record, ultimately, allowed the suit filed by the plaintiff in part. The operative part of the order passed by the Civil Court reads as under:
"::ORDER::
1. Present suit of plaintiff is "partly allowed".
2. The defendant is hereby directed to hand over the vacant and peaceful possession of the suit premises to the plaintiff within one month from the date of this order.
3. The defendant is further directed to pay the amount of mesne profit at Rs.18,000/ p.m. to the plaintiff from the date of expiry of last rent agreement i.e. 30042015 till the date of actual and peaceful possession of the suit premises handed over to the plaintiff.
4. The amount of deposit Rs.3,00,000/ is to be given as set off towards means profits amount.
5. The defendant do pay the cost of the suit to the plaintiff and bears his own.
6. Decree to be drawn accordingly.
Signed and pronounced in the open Court today on this 22 nd day of January, 2018."
9 The defendant, being dissatisfied with the judgement and decree passed by the Civil Court, preferred the Regular Civil Appeal No.100 of 2018 in the Court of the District Judge at Vadodara. The Regular Civil Page 5 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT Appeal No.100 of 2018, ultimately, came to be dismissed by the 8th Additional District Judge, Vadodara vide judgement and order dated 10th July 2018.
10 Being dissatisfied with the judgement and order passed by the lower Appellate Court dismissing the appeal, the defendant is here before this Court with this Second Appeal under Section 100 of the C.P.C.
11 The appellant has proposed and formulated the following questions in the memorandum of the Second Appeal:
"A. Whether the Hon'ble District Court was right in holding that the agreement between the Appellant and the Respondent is a leave and license agreement?
B. Whether the Hon'ble District Court was right in holding that the agreement between the Appellant and Respondent expired in such circumstances when the Respondent had not returned the amount of Rs.3,00,000/ (Rupees Three Lakhs Only)?
C. Whether the Hon'ble District Court was right in holding that no termination notice was required to be sent by the Respondent to the Appellant?
D. Whether the Hon'ble District Court was right in holding that the agreement between the Appellant and the Respondent got automatically terminated after expiry of its period?
E. When the parties are acting upon the oral understanding between them, even if the written agreement regarding the same is existing, then Page 6 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT which will prevail? The written agreement or the oral understanding upon which the parties are acting?"
12 Mr. Golani, the learned counsel appearing for the appellant vehemently submitted that the judgment and decree of eviction passed by the Civil Court and affirmed by the lower Appellate Court could be termed as a nullity, as the Civil Court had no jurisdiction to adjudicate the suit filed by the original plaintiff. Mr. Golani submitted that the relations of the parties are that of landlord and tenant, and therefore, the parties are governed by the provisions of the Bombay Rents Act. In such circumstances, the suit could have been instituted only in the Small Causes Court and not in the regular Civil Court.
13 Mr. Golani submitted that the Courts below committed a serious error in construing the agreement as a 'Leave and License Agreement'. In fact, it is not a 'leave and license agreement'. It is a 'lease agreement'.
14 Mr. Golani submitted that the plaintiff has admitted in his cross examination that he had received Rs.3 Lakh from the appellant as a security deposit while letting the suit property on rent. According to Mr. Golani, the Courts below committed a serious error in setting off the amount of deposit Rs.3 Lakh towards mesne profit. Mr. Golani submitted that the two Courts below ought to have appreciated that no notice, under Section 106 of the Transfer of Property Act, was issued by the defendant before instituting the suit. According to Mr. Golani, as per clause 11 of the Lease Agreement dated 6th June 2014 Exhibit : 37, the defendant was obliged to issue one month prior notice to the appellant calling upon the appellant to hand over the vacant and peaceful possession of the suit property. However, no such notice came to be issued to the appellant. Mr. Golani submitted that the two Courts below Page 7 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT committed a serious error in construing the agreement between the parties. He laid much emphasis on the words "Bhada Karar", which means "Lease Agreement" and not "Leave and License Agreement". According to him, the word "Bhada" means rent.
15 In such circumstances referred to above, Mr. Golani prays that there being merit in his Second Appeal, the same may be admitted and posted for final hearing.
16 On the other hand, this Second Appeal has been vehemently opposed by Ms. Aditi Raol, the learned counsel appearing for the original plaintiff (decree holder). She submitted that none of the questions formulated in the memorandum of the Second Appeal could be termed as the substantial questions of law. According to the learned counsel, all the questions formulated are questions of fact. The learned counsel submitted that both the Courts below have recorded a concurrent finding as regards the nature of agreement between the parties. Both the Courts below have construed the agreement to be the "Leave and License Agreement" and not the "Lease Agreement".
17 Ms. Raol submitted that there is no merit in the contention canvassed on behalf of the appellant as regards the jurisdiction of the Civil Court to try the suit. It is pointed out that the provisions of the Bombay Rents Act would not apply in the present case.
18 Ms. Raol submitted that the operation of the Act, 1947 has been suspended from its operation by virtue of the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Amendment) Act, 2001, and in such circumstances, the suit could have been filed only in the Civil Court and not before the Small Causes Court.
Page 8 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT19 In such circumstances referred to above, Ms. Raol submitted that there being no merit in this Second Appeal, the same may be dismissed.
20 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the two Courts below committed any error in passing the impugned order.
21 Let me first deal with the principal argument of Mr. Golani that the eviction decree is a nullity as the suit could not have been instituted before the Civil Court and could have been instituted only before the Small Causes Court, which had the jurisdiction to try the suit between the parties under the provisions of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947.
22 The aforesaid contention of Mr. Golani deserves to be outright rejected in view of the Gujarat Amendment Act, 2001. Section 4 of the Act, 1947 reads thus:
"4. Exemptions (1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government but it shall apply in respect of premises let to the Government or a local authority (1A) This Act shall not apply to
(a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Second Amendment) Act, 2001 (hereinafter referred to as "the amending Act);
(b) any existing premises which is selfoccupied by the owner or vacant on or after the commencement of the amending Act, and is let after such commencement for a period of ten years from the date of the Page 9 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT commencement of the amending Act.
Explanation. For the purpose of this section, "existing premises" means any premises which exists on the date of the commencement of the amending Act." ' (2) The State Government may, by a notification in the Official Gazette direct that all or any of the provisions of this Act shall not, subject to such conditions and terms, as may specify, apply ;
(a) generally [(i) to premises used for a public purpose of a charitable nature or to any class of premises used for such purpose.
(ii) to premises held by a public trust for a. religious or charitable purpose and;
(iii) to premises held by & public trust for a religious or charitable purpose and administered by a local authority, or
(iv) to premises vested by or under the Charitable Endowment Act, 1890 (VI of 1890) in the treasurer of Charitable Endowments for India or for any State, or]
(v) to premises constructed or purchased out of Public Trust Administration Fund established under Section 57 of the Bombay Public Trust Act, 1950 (Bom. XXIX of 1950) and vesting in the Charity Commissioner, or
(b) for special reasons to be recorded, to any particular premises of the nature referred to in subclauses (i), (ii), (iii) of Clause (a) Explanation: or the purpose of this section "public trust "means a Public Trust registered or deemed to be registered under Bombay Public Trusts Act, 1950 (Bom. XXIX of 1950), or a wakfs registered or deemed to be registered under Muslim wake Act, 1954 (XXXIX of 1954].
(3) The (State) Government may also by order direct that all or any of the provisions of part III shall not apply to such hostel or institution or such class of hostels or institutions, subject to such terms and conditions, if any, as may be specified in the order.
(4) (3) The Expression "premises belonging to Government or & local authority" in subsection (l) shall, notwithstanding anything contained in the said subsection or in any judgment, decree or order of a court, not include a building ereated on any land held by any person from the ' Page 10 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT Government or a local authority under an agreement, lease or other grant, although having regard to the provisions of such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be; and
(b) Notwithstanding anything contained in Section 15 such person shall be entitled to create & tenancy in respect of such building or part thereof whether before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 (Bom. Ord. II of 1959).
23 The Amendment Act, 2001 was to remain in force for a period of ten years. The Amendment Act came into effect with effect from 5th September 2001 i.e. upto 31st day of March 2011. Later, the same came to be extended upto 31st March 2021. The Notification in that regard published in the Government Gazette reads thus;
"PART IV Acts of Gujarat Legislature and Ordinances promulgated and Regulations made by the Governor The following Act of the Gujarat Legislature, having been assented to by the President on the 31st March, 2011, is hereby published for general information.
C.J. GOTHI, Secretary to the Government of Gujarat.
Legislature and Parliamentary Affairs Department.
GUJARAT ACT NO.6 OF 2011.
(First published, after having received the assent of the President, in the "Gujarat Government Gazette,"on the 31st March, 2011).
AN ACT further to amend the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
It is hereby enacted in the Sixtysecond Year of the Republic of India as follows:
1. (1) This Act may be called the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Amendment) Act, 2011.Page 11 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT
(2) It shall come into force from the 1st April, 2011.
2. In the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the principal Act"), in section 3, in sub section (2), for the figures, letters and words "31st day of March, 2011", the figures, letters and words "31st day of March, 2021" shall be substituted.
3. In the principal Act, in section 4, in subsection (1A), the words "for a period of ten years from the date of the commencement of the amending Act" shall be deleted."
24 Thus, from the above, it is clear that the provisions of the Act, 1947 will have no application in the case on hand. This issue has been well considered by a Coordinate Bench of this Court in the case of Dipak Rasbiharilal Goyel vs. Naliniben H. Raval [First Appeal No.879 of 2011 decided on 23rd March 2012]. I may quote the relevant observations:
8...Moreover, it has been submitted that the operation of the Rent Act has been suspended and the notification will have effect only for the purpose of filing the proceedings instead of the Rent Court to the Civil Court, cannot be readily accepted. The notification which has been placed on record by the learned advocate for the appellant particularly Sub Section (1A) of Section 4 of the Rent Act has been amended vide Government notification dated 30.10.2001, which reads as under : "(1A) This Act shall not apply to
(a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Second Amendment) Act, 2001 (Guj. 27 of 2001) (hereinafter referred to as "the amending Act");
(b) any existing premises which is selfoccupied by the owner or vacant on or after the commencement of the amending Act, and it let after such commencement;
for a period of ten years from the date of the commencement of the amending Act.
Page 12 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENTExplanation. For the purposes of this section, "existing premises"
means any premises which exists on the date of commencement of the amending Act."
[9] The notification by which the Bombay Rents, Hotel and Lodging House Rates Control Act has been suspended clearly provides that "it shall be suspended for a period of ten years from the date of the commencement of the amending Act" and the provisions of the Rent Act would not be applicable. Therefore, naturally, when the statutory provisions of the Rent Act are not applicable and the entire transaction is pursuant to the leave and licence agreement between the parties, the parties would be governed by terms and conditions of such leave and licence agreement. As stated above, clause in the recital, the leave and licence agreement at Ex.26 which has been quoted here clearly provides that the premises has been permitted to be used purely on leave and licence basis as licensee only for a limited period of 11 months and not as a lessee or a tenant. Further, clause 7 again provides that "the licensee confirms that he will not claim exclusive possession or claim any tenancy right over the licensed premises." Thus, it is more than clear that the parties have accepted and agreed to be governed by leave and licence agreement as expressed stipulation that the possession is given only for the purpose of residence on the basis of leave and licence agreement for a period of 11 months and not as lessee or a tenant. Further, it has been clarified and confirmed by the licencee / applicant that he will not claim exclusive possession or claim any tenancy right over the premises. This would make it more than clear about the intention of the parties that they have willingly and readily accepted to be the governed by the leave and licence agreement. Therefore, the submissions with regard to gathering of the intention of the parties does not survive as parties have made their intention clear by clause in the agreement. Moreover, admittedly, by virtue of the amendment in the Rent Act, the operation of the Rent Act itself has been suspended and it is made clear that it was not applied for a period of 10 years. Therefore, when there is no statutory provisions in force or applicable and when the parties have entered into leave and licence agreement willingly with open eyes with the terms and conditions which has been reduced in writing, they would naturally be governed by such expressed conditions agreed upon between the parties. Thus, they are governed by the terms and conditions of the leave and licence agreement."
25 Thus, the first contention of Mr. Golani is rejected in view of the aforesaid discussion.
26 I also find no merit in the contention of Mr. Golani as regards Section 106 of the Transfer of Property Act. This issue is no longer res Page 13 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT integra in view of the decision of the Supreme Court in the case of Satendra Singh vs. Vinod Kumar Bhalotia reported in (2014) 16 SCC
674. I may quote the relevant observations:
"10. Now, we shall deal with the second contention. Insofar as the plea under Section 106 of the Transfer of Property Act is concerned, it was the assertion of the respondentlandlord, that there was a fixed term tenancy under the rent agreement dated 1.8.1981. The rent agreement was only for a period of 11 months, from August, 1981 to June, 1982, and that, on the expiry of the express term of tenancy depicted in the rent agreement, the petitioner did not remain the respondent's tenant. It was submitted, that on the expiry of the rent agreement, the petitioner was truly a trespasser. Accordingly no notice under Section 106 of the Transfer of Property Act was required to be issued by the respondentlandlord, before filing the suit for the eviction of the petitioner."
27 In the case on hand, it is not in dispute that the agreement between the parties was for a fixed term i.e. for a period of eleven months. Assuming for the moment and construing the agreement to be a lease agreement and not a leave and license agreement, on the expiry of the express term of tenancy depicted in the rent agreement, the appellant did not remain the plaintiff's tenant.
28 The aforesaid issue has also been dealt with by the Coordinate Bench in the case of Dipak Goyel (supra). I may quote the relevant observations as follows:
"[10] Another facet of the arguments which have been emphasized by learned advocate Mr.J. R. Shah referred to the provisions of the Transfer of Property Act particularly section 106 and section 111(a) to emphasize that the Transfer of Property Act would be attracted even if the Rent Act is not applicable. In that case such possession cannot be recovered without following the procedure and issuance of notice as contemplated under the provisions of the Transfer of Property Act particularly section 106 is also misconceived. Both the aforesaid submissions, proceed on the assumption that it is a lease and the agreement is a lease agreement. It is required to be noted again, as per the leave and licence agreement at Ex.26, it has been specifically stipulated in the agreement itself that the possession of Page 14 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT the premises is given on leave and licence basis for the period of 11 months only and not as a lessee or tenant. Further, the provisions of Section 106 of the Transfer of Property Act provides with regard to the termination of a lease and the notice in absence of any agreement or written contract. However, in the facts of the case, there is specific leave and licence agreement between the parties which provides for the aspects like, the possession is handed over on leave and licence agreement for a period of 11 months making it clear that it is not a lease and that the appellant cannot claim any right or possession as a lessee or a tenant. Therefore, when there is is expressed stipulation in the contract / leave and licence agreement providing for such aspects that Section 106 of the Transfer of Property Act will not have any application as it refers to the lease. Further as stated above again it refers to the lease where there is no contract whereas in the facts of the case there is a separate leave and licence agreement at Ex.26 between the parties. Therefore, this submission made by learned advocate Mr.J. R. Shah also would not have any application. The submission made by learned advocate Mr.J. R. Shah to claim any right as a tenant or a lessee cannot be accepted in light of the specific leave and licence agreement at Ex.26 coupled with the fact that the operation of the Rent Act has been suspended for 10 years and the statutory provisions of the Rent Act would not be attracted. Therefore, the submissions made by learned advocate Mr.J. R. Shah cannot be accepted. The submissions made by learned advocate Mr.J. R. Shah to claim any right as a tenant or a lessee cannot be accepted in light of specific leave and licence agreement at Ex.26 coupled with the fact that the operation of the Rent Act has been suspended for a period of 10 years and the statutory provisions of the Rent Act would not be attracted. The reliance has been placed by learned advocate Mr. Shah referring to the decision in the case of Lalchand etc. Vs. State of Haryana, reported in AIR 1984 SC 226, will not have applicable. Similarly the reliance has been placed by learned advocate Mr. Shah referring to the decision in the case of P. Ramasami Naidu Vs. Venkataramajulu Naidu and another, reported in AIR 1914 Madras 301 again would not be applicable as it refers to the lease whereas in the facts of the case, it is a case of leave and licence agreement. Similarly, the reliance has been placed by learned advocate Mr.Shah the decision of Calcutta High court in the case of Shyam Sundar Ganeriwalla Vs. Delta International Limited, reported in 1998 (2) RCR 199, does not apply in light of the specific notification issued by which the provisions of the Rent Act have been suspended. Similarly, unless it could be proved prima facie with the evidence that it was a lease, the Transfer of Property Act would also not be any applicability. Therefore, as discussed above, the submission has to be considered in the background of the facts and material on record and there is no doubt about the fact that it was not an agreement of lease but it was an agreement for leave and licence. The observations which have been referred to are made with reference to the facts applicable in a given case of lease and not in the present case."Page 15 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT
29 I am also not impressed by the submission of Mr. Golani that the agreement between the parties should have been construed by the two Courts below as a 'lease agreement' and not a 'leave and license agreement'. This aspect has been well dealt with by both the Courts below. The lower Appellate Court has observed in its judgement as follows:
"12 As far as contentions raised in the appeal in respect to statutory notice is concerned, Ld. Trial Court appears to have perfectly discussed entire pleadings, evidence and arguments in the impugned judgment and as such Ld. Trial Court has rightly believed that the suit was based on the leave and license agreement where statutory provisions were complied with. In this regard looking to the case laws cited by the Ld. Advocate of respondent from 2012(2) GLR 1572 (supra), Hon'ble High Court of Gujarat has, held that there is expressed stipulation in contract/leave and license agreement providing for such aspects that Section 106 of Transfer of Property Act will not have any application as it refers to lease, in light of agreement, right as tenant or as & lessee cannot be accepted. Here, in this case also it was clear cut case on the part of the respondent that it was purely based on the leave and license agreement, For which the contentions raised on the part of the Ld. Advocate of the appellant cannot be agreed with. Further, it is also necessary to note that Ld. Advocate of the appellant has drawn attention of this appellate court, towards the agreement and showing the heading of the same, he vehemently argued that the documents is having heading "Rent Agreement" for which also suit could not have been decided in manner in which Ld. Trial Court concluded the same. I have carefully taken into consideration this aspect also but the document produced before the Ld. Trial Court at Ex34 is very much clear for which I am also of the view that merely some word like (Rent) is used somewhere, it can not be stated that the agreement was not for leave and license. Entire body of the agreement at Ex38 is very much clear to believe that it was nothing but an agreement for leave and license and as such it was not honoured by the appellant in light of the above case laws and specific requirement for specific notice was there. Therefore, Ld. Trial Court has come to just and proper conclusion on this aspect for which contentions raised in this appeal are not acceptable. Here, I would also like to note that any documents or submissions is to be considered in its entirety and merely relying upon specific word court cannot direct itself to other way. Hyper technicality can never come to just and proper conclusion of the proceedings and as such also I do not see any error in the impugned judgment passed by the Ld. Trial Court."
30 In the overall view of the matter, I am convinced that there is no Page 16 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019 C/SA/267/2018 CAV JUDGMENT substantial question of law involved in the present Second Appeal.
31 In the result, this Second Appeal fails and is hereby dismissed. The connected civil application also stands disposed of. The interim order stands vacated forthwith.
(J. B. PARDIWALA, J) FURTHER ORDER After the judgement is pronounced, Mr. Golani, the learned counsel appearing for appellant made a fervent appeal that the interim order passed by this Court may be continued for a further period of four weeks. In view of what has been observed by this Court in the judgement, the possession of the appellant of the shop in question, as on date, could be termed as unlawful. In such circumstances, the request of Mr. Golani is not accepted.
(J. B. PARDIWALA, J) CHANDRESH Page 17 of 17 Downloaded on : Wed Jul 10 01:34:33 IST 2019