Uttarakhand High Court
Madan Mohan Kukreti vs Geeta Bhawan And Anr. on 6 March, 2006
Equivalent citations: AIR2007UTR32, AIR 2007 UTTARAKHAND 32, 2007 (3) ALL LJ 632, 2007 AIHC NOC 317, (2006) 1 ALL RENTCAS 728, (2006) 3 UC 1549
Author: Prafulla C. Pant
Bench: Prafulla C. Pant
ORDER Prafulla C. Pant, J.
1. This Second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 27-1-2004. passed by the District Judge, Pauri Garhwal in Civil Appeal No. 12 of 2002, whereby Judgment and decree passed in Original Suit No. 45 of 1998 is confirmed.
2. Brief facts of the case arc that plaintiff/respondent instituted as suit for ejectment and mesne profits against the defendant/appellant from room No. 248/249, Block. II, of the Geeta Bhawan, Swargashram (Rishikesh). Plaintiff/respondent's case in the plaint was that, it is a Society registered under the Societies Registration Act, 1860, which is a public charitable institution. On 19-1-1990, defendant/appellant was appointed as Technical Officer and to facilitate him to discharge his functions in the said capacity, he was allowed to stay in aforementioned rooms as a licensee. It is further pleaded in the plaint that the defendant/appellant was provided a gas cylinder with regulator and a gas stove. It is further pleaded that, since the building belongs to a Society registered under the Societies Registration Act, the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is not applicable to the building in question. Otherwise also, the defendant is not a tenant in the building. Plaintiff further pleaded in the suit that on 8-3-1996, the services of the defendant were terminated and with that his license to stay in room Nos. 248-249 also came to an end. However, even after being asked to deliver the possession the defendant failed to vacate the premises in question. Ultimately, a notice dated 11-5-1998 was served on the defendant terminating his tenancy w.e.f. 30th day of the date of notice. The defendant refused to accept the notice and got it returned and thereby his license has already been terminated. With these allegations, ejectment of the defendant and mesne profits at the rate of Rs. 500/- per month were claimed by the plaintiff (respondent).
3. The defendant contested the suit before the trial Court and filed his written statement, in which he claimed himself to be a tenant in the premises in question. He also challenged that U.P. Act No. 13 of 1972 is not applicable to the building in question. It was pleaded by the defendant that Sri Chiranji Lal, Manager of the Geeta Bhawan has no knowledge of the Ayurvedic medicines and as a Technical Officer he (defendant) made certain advises to him which the Manager did not like and ultimately issued a show cause notice dated 8-3-1996 terminating his services. The defendant had separately filed a suit No. 14 of 1996 challenging said termination. Claiming himself to be tenant on rent at the rate of Rs. 150/- per month, it is alleged in the written statement that the tenancy did not stood terminated.
4. Learned trial Court framed following issues in the Original Suit:
1. Whether, the plaintiff through Chiranji Lal was competent to institute the suit, if not, its effect ?
2. Whether, the defendant was in occupation of the premises in question as a licensee, and has the license been terminated by the plaintiff, if so, its effect ?
3. Whether, the defendant is occupying the premises in question as a tenant as alleged in the written statement, if so, its effect?
4. Whether, the suit is under-valued and court-fee paid is insufficient, and has the Court no jurisdiction to try the suit ?
5. Whether, the suit is liable to be stayed under Section 10 of the Code of Civil Procedure, 1908?
6. Whether, as alleged in the written statement, the Court has no jurisdiction to try the suit ?
7. To what relief, if any, the plaintiff is entitled ?
5. Learned trial Court after recording the evidence and hearing the parties, accepted the plaintiffs case and decreed the suit as prayed by the plaintiff for ejectment and mesne profits. Aggrieved by said judgment and decree, a Civil Appeal No. 12 of 2002 was filed on 16-12-2002 by the defendant. Before the lower appellate Court three questions were mainly pressed by the defendant/ appellant namely, (a) Whether, Sri Chiranji Lal was competent to institute the suit ? (b) Whether, the defendant/appellant was a tenant or a licensee ? and (c) Whether, suit was triable by the Civil Judge (Jr. Division), Kotdwar, or not ?
The learned lower appellate Court, after hearing the parties, agreed with the trial Court that Sri Chiranji Lal being Manager, has power of attorney to institute the suit and during the pendency of suit after death of Chiranji Lal, Sri Gauri Shankar Mohta has been substituted. Learned lower appellate Court further agreed with the trial Court that the defendant was a licensee and not a tenant. It further agreed with the finding of the trial Court that the trial Court had jurisdiction to try the suit. Aggrieved by the same, this Second Appeal has been filed which was admitted on 12-5-2004 on the following substantial question of law:
Whether, in the facts and circumstances of the case, the lower Courts have erred in law in holding that the defendant/appellant was a licensee of the plaintiff even though the plaintiff had written a letter to the Director of Ayurvedic and Yunaani Services, Uttar Pradesh, Lucknow that the accommodation would be provided to the appellant on rent at the rate of Rs. 150/- per month ?
6. I heard learned Counsel for the parties and perused the record.
Answer to substantial questions of law:
7. Admittedly, the defendant/appellant was appointed as Technical Officer by the plaintiff/respondent in Geeta Bhawan to assist in manufacturing of Ayurvedic medicines. It is also not disputed between the parties that room Nos. 248-249 in Geeta Bhawan were allowed to be occupied by the defendant/appellant on his appointment as Technical Officer. The dispute relates as to the fact whether the defendant/appellant is lessee or a licensee in the said premises in question. I have gone through the entire statement of D.W. 1 Madan Mohan Kukreti There is not a single word in the examination-in-chief of the defendant that he is tenant in the premises in question. What he has stated is that he was provided accommodation facility in room NOS. 248-249 of Geeta Bhawan. In the cross-examination also, he admits that he has no proof of payment of rent in respect of the aforesaid rooms. As against this, P.W. 1, Gauri Shankar Mohta, Manager of Geeta Bhawan has stated that an Ayurvedic Hospital runs in the Geeta Bhawan for free service to the patients and saints. It is further stated by P.W. 1 that his predecessor Chiranji Lal (since deceased) authorized attorney to institute the suit on behalf of Geeta Bhawan. It is further stated on the basis of record by this witness that the plaintiff was permitted to occupy room Nos. 248-249 of the Geeta Bhawan in connection with his services as Technical Officer, Ayurvedic medicines. This witness has further stated that the services of the defendant were terminated vide order dated 8-3-1996 and thereafter license to occupy the aforesaid rooms also stood terminated. Apart from this a notice by registered post was also sent to the defendant terminating his license which was refused to be accepted by the defendant on 14-5-1998 (copy Ext. 12). As such, before the trial Court there was categorical evidence to believe that the defendant was permitted to occupy the premises as a licensee and not as a tenant.
8. Mr. S.K. Posti, learned Counsel for the defendant/appellant drew attention of this Court to a letter dated 18-10-1991 (paper No. 18-C filed before the lower appellate Court for the first time on 22-5-2003). The said letter purports to have been signed by Chiranji Lal Aggarwal, the then Manager of the Geeta Bhawan, and addressed to the licensing authority, Directorate of Ayurvedic and Yunaani Services, Uttar Pradesh, Lucknow, wherein it is mentioned that the defendant Dr. Madan Mohan Kukreti, Ayurvedacharya, is working as a full time 'Vaidya' and is provided accommodation with electricity and water facility. The last sentence in said letter is that the Management is deducting Rs. 150/- per month as rent from his salary. The said document was got proved at appellate stage by producing a witness P.W. Ratnesh Singh, who states that he was a Store-keeper in Geeta Bhawan when the defendant was Ayurvedic Officer. He admits in his cross-examination that he resigned from the service. However, he is unable to explain as to the need on the part of the plaintiff to write the aforesaid letter to the licensing authority. Assuming for a moment that the rent at the rate of Rs. 150/-per month was being deducted from the salary of the defendant for the accommodation provided to him, this Court has to see, whether by such deduction can it be said that the relationship between the plaintiff and the defendant were that of landlord and tenant and, not that of licensor and licensee, as alleged and proved by the plaintiff.
9. The word 'license' has been defined in Section 52 of the Easement Act, 1882 (5 of 1882), which reads as under:
52. "License' defined -- Where one person grants to another, or to a definite number of other persons a right to do, or to continue to do, in or upon 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 license.
10. The expression 'lease' is defined in Section 105 of Transfer of Property Act, 1882 (4 of 1882), as under:
105. Lease defined -- a lease of immovable property is a transfer of a right to enjoy such property, mode for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions, to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.-- The transferor is called lessor, the transferee is called lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
11. From the perusal of above two definitions, it is clear that a license is a personal right granted to a person without creating an interest in the property, while in the case of lease, there is a transfer of interest in immovable property. As such, in the opinion of this Court, mere deduction of a particular sum from the salary of an employee in lieu pf the accommodation provided to him by the employer cannot be said to be a lease unless there is an intention to create an interest, in the property. In C.M. Beena v. P.N. Ramchandra Rao , it has been held by the Supreme Court that what matters is real intention of the parties and not the word lease or license used as nomenclature for the relationship.
12. From the oral as well as documentary evidence and also from the letter dated 18-10-1991, filed by the defendant/appellant before the lower appellate Court, what appears is this that the defendant, since was employee as Technical Officer (Ayurvedic) and to facilitate him to discharge his functions he was provided accommodation in the Geeta Bhawan. In other words, the intention was to give the facility for the period of service. That being so, the relationship between the employer and employee in connection with the occupation of the premises in question was that of a licensor and licensee and not that of a lessor and lessee. Therefore, this Court does not find any error of law or that of fact in the impugned judgments and decree passed by the trial Court and the lower appellate Court. The substantial question of law is accordingly answered against the appellant.
Other submissions:
13. Apart from substantial question of law mentioned above, learned Counsel for the appellant also argued on two more points, namely, (a) that the trial Court has no jurisdiction to try the suit; and (b) that the suit should have been stayed under Section 10 of the Code of Civil Procedure, 1908.
Answer regarding submission (a) i.e. Jurisdiction:
14. Learned Counsel for the defendant/appellant drew attention to this Court to Sub-section (2) of Section 15 of the Provincial Small Cause Courts Act, 1887, as amended by State of Uttar Pradesh and argued that the trial Court has no jurisdiction to try this suit. The relevant Sub-section (2) of Section 15 of the aforesaid Act, as amended by State of Uttar Pradesh (applicable to State of Uttaranchal), reads as under:
(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.
Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for recovery from him, of rent In respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference In this sub-section to five thousand rupees shall be construed as a reference to twenty-five thousand rupees.
The argument advanced by learned Counsel for the appellant is misconceived for the reason that plaintiff has not come up with a case of lease. The jurisdiction is required to be seen from the plaint allegations. In the plaint, the plaintiff has clearly stated that the defendant was a licensee in the accommodation in question and his license has been terminated. As such, there is no question of ousting of jurisdiction of the Civil Court in such matter.
Answer regarding submission (b):
15. Mr. S.K. Posti, learned Counsel for the defendant/appellant contended that after termination of the services of the defendant by the plaintiff, he instituted a suit No. 14 of 1996; Madan Mohan Kukreti v. Chiranji Lal challenging the termination of his services, and, in that suit the defendant has alleged that he is occupying the premises as a tenant. In this connection, it is contended that suit filed by the present plaintiff/respondent is a subsequent suit and that being so, it should have been stayed by the trial Court. It is pertinent to mention here that Section 10 of the Code of Civil Procedure, 1908 provides that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigating under the same title. I am unable to accept the contention of learned Counsel for the appellant for the reason that the main question involved in the previous suit was as to the validity of termination of the service of the appellant/ defendant, while in the subsequent suit it is relating to termination of a license to occupy the premises in question. Secondly, to bring a case within the purview of Section 10 of the Code, the objector is required to file copies of the plaints of both the cases, copies of the written statements of both the cases and the issues involved therein. Learned Counsel for the appellant failed to show this Court that the defendant filed copies of the plaint and the written statement of previous suit before the trial Court. Needless to say, that the object of Section 10 of the Code is to avoid the conflicting decision of the competent Court over the same matter. In the opinion of this Court, it is not sufficient if only one or some of the issues are identical in the suits pending-There must be substantial identity of entire matter.
16. For the reasons as discussed above, this Court finds no merit in this appeal. And, accordingly, the appeal is dismissed. No order as to costs. However, the defendant/ appellant is allowed to vacate the premises in question by 30th of April, 2006. Whereafter, the plaintiff/respondent will be at liberty to get executed the decree.