Delhi District Court
Sh. Surendra Nath vs M/S The Oriental Insurance Co. Ltd on 20 July, 2020
IN THE COURT OF DR. PANKAJ SHARMA, ADDITIONAL SENIOR
CIVIL JUDGE, NEW DELHI DISTRICT, PATIALA HOUSE COURT,
NEW DELHI
RCA No:4/18
1. Sh. Surendra Nath,
S/o late Sh. Deena Nath
2. Sh. Sumer Nath
S/o Sh. Surendra Nath
Both residents of:-
(i) Ellerslie Cottage,
Shimla-4; (Himachal Pradesh)
(ii) 60, Janpath,
New Delhi-110001 .......Plaintiffs/Appellants
Versus
M/s The Oriental Insurance Co. Ltd.,
Oriental House, near Delhi Gate,
Asif Ali Road,
New Delhi-110002
[through its Senior Executive/Manager] .....Defendant/Respondent
Date of Institution : 06.10.2018
Date on which judgment was reserved : 28.03.2020
Date of pronouncing judgment : 20.07.2020
JUDGMENT
1. This is an appeal by unsuccessful plaintiff under Section 96 of the Code of Civil Procedure, 1908 seeking to challenge / impugn the legality and validity of the judgment and decree, both dated 30.08.2018 (hereinafter, jointly as well as severally, called and referred to either as the 'impugned judgment' or even as the 'impugned decree'), passed by the learned Court presided over by Ms. Richa Shanna, Ld. Civil Judge-01 (District: West), Tis Hazari RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.1 of 22 Court Complex, Delhi-110054 (hereinafter called and referred to as 'the learned trial court' in Suit No. 255 of 2007 (Old); SCJ No.607090 of 2016 (New), titled as 'Shri Surendra Nath & Anr. Versus M/s. The Oriental Insurance Co. Ltd.' in respect of immovable property forming part of the First Floor of the building bearing No. 60, Janpath (erstwhile 'Queens Way'), New Delhi-110001 (which premises / accommodation, for the sake of brevity, are hereinafter called and referred to as the 'suit premises'). The parties to the appeal are referred to their ranks as per the original suit.
2. The plaintiffs had filed a suit for mandatory injunction against the respondent/defendant in the year 2007 claiming that plaintiff no.1 and late Sh. Kedar Nath were sons of late Sh. Deena Nath and were absolute owners/landlords and in possession of the built up property bearing no. 60, Janpath ('Queens Way'), New Delhi-110001. That in or around September, 1969, the plaintiff no.1 and late Sh. Kedar Nath had permitted M/s Eagle Star Insurance Co. Ltd. (predecessor in interest of the present defendant) to occupy the rear portion on the first floor at no. 60, Janpath, New Delhi-110001 and the said premises were let out for the office use only on, 'leave and license' basis at a monthly license fee of Rs.1225/- w.e.f 16.09.1969. The terms and conditions governing the said 'leave and license' was reduced into writing by the then licensee M/s Eagle Star Insurance Co. Ltd. vide their letter dated 16.09.1969 and as per the terms of the said agreement the license fee was payable quarterly in advance. Also, plaintiff allowed defendant to use four ceiling fans, four Godrej steel tables and four Godrej steel arm chairs. The erstwhile M/s Eagle Star Insurance Co. Ltd. was later on merged with the present defendant at the time of nationalization of the Insurance Company.
RCA No.4/18Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.2 of 22
3. The relevant clauses of the agreement dated 16.09.1969 are as reproduced by plaintiff in the plaint are:-
"(a) We will use the premises for office use only. Our associate company Marina and General Insurance Co. Ltd. will also use the office premises with us;
(b) A monthly license fee of Rs.1225/- will be paid by us quarterly in advance effective from 16.09.1969;
(c) The license fee is also inclusive of hire charges of four ceiling fans and furniture;
(d) The license fee is also inclusive of our right for erecting neon-sign board in the front portion of the premises or any other signed board electrically operated premises or otherwise whether the same is used by us or not;
(e) We will be your licensees for the use of the said accommodation and the said license can be terminated by six months notice on either side.
..................
You have given us to understand that the above premises have been made available to use for office use only. You reserve the right to cancel the license by giving us six months notice as mentioned above, if and when you feel that you cannot spare this accommodation for us."
4. Sh. Kedar Nath expired on 19.11.2005 at Shimla and by virtue of a Will dated 11.12.2000 executed by him, his share in the suit property had devolved to the exclusive share of his nephew Sh. Sumer Nath. The defendant failed to pay the license fee/user charges to the plaintiffs w.e.f 01.04.2007 on one pretext or the other and on earlier occasions, defendant had withheld the license fee and have only released it after a legal notice was served to it by the plaintiffs.
5. The plaintiffs time and again requested the defendant to pay the user charges/license fee but the defendant miserably failed to pay the same and thereafter plaintiff revoked the license of the defendant vide a legal notice dated 14.09.2003 and despite it service, defendant neglected and avoided the pay the outstanding dues of the plaintiffs. The defendant had materially changed and altered the premises as RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.3 of 22 the entrance of the premises is altered by shortening in the size of the door and raising the wall in place of the door to the extent it has been shortened. Also defendant has altered and raised a mezzanine in the hall without the permission of the plaintiffs. The plaintiffs served a legal notice dated 16.03.2007 seeking removal of the mezzanine and to restore the premises to its original condition, however, despite service of the notice defendant failed to comply the same. Also, plaintiff through this legal notice called upon the defendant to pay the entire arrears of user charges @ Rs.1225/- per month and to remove its belongings from the license portion of the premises on or before 15.09.2007 so as to facilitate their delivering the actual physical vacant possession to the plaintiffs on or before the said date, however, defendant failed to comply the same.
6. In written statement the defendant alleged that plaintiffs have deliberately concealed the real facts from the Hon'ble Court and averred that suit premises was given to the defendant by Sh. Kedar Nath on a monthly rent of Rs.1225/-, however, the term of license fee was used instead of monthly rent while paying the monthly rent of Rs.1225/- by the defendant as per the desire of the landlord as a camouflage whereas the intention of the landlord was to let out the suit premises to the defendant on a monthly rent of Rs.1225/-. The defendant denied the averments made in the plaint except receipt of legal notice sent by plaintiff. The defendant denied having existence of 'leave and license agreement' with the plaintiffs and maintained that the suit premises was given on rent basis and the suit premises was under its complete physical and exclusive use.
7. The plaintiffs filed replication denying the stand taken by the defendant and reasserted their position as per the plaint. From the RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.4 of 22 pleadings of the parties, ld. Trial Court framed following issues on 21.01.2009:-
(i) Whether the defendant was licensee of the plaintiff? OPP.
(ii) Whether defendant was tenant of the plaintiffs? OPD.
(iii) Whether relief of possession in the form of mandatory injunction is not maintainable? OPP.
(iv) Relief.
8. Ld. Trial Court returned its findings on issue no.(i) and (ii) by dealing with them together. The issue no.(i) was decided against the plaintiff and issue no.(ii) was decided in favour of the defendant. The ld.Trial Court while deciding the aforesaid issues observed that "the utmost crucial document relied upon by the plaintiffs is the document Ex.PW1/2 which laid out the terms and conditions of allowing the use of suit premises by M/s Kedar Nath Surendra Nath to the defendant. It is noticeable that though the said document mentions the term license fee for the payment of quarterly amount of Rs.1,225/- but it nowhere further stipulates any other specific or stringent condition from which it can be decipher that the suit property shall remain in the possession and control of the landlord only and in fact the defendant was given right to put sign boards and the premises were also altered and renovated as per the desire and satisfaction of the defendant by the plaintiff and it further mentioned that the possession has been handed over to M/s Eagle Star Insurance Co. Ltd. In fact there was a condition that before terminating the so called license, six months notice was mandatory to be given to the defendant which actually runs contrary to the very concept of giving the property on license basis because if the property would have been given with the intention to create only a licensor - licensee relationship, then there RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.5 of 22 would have been no transfer of interest in the property and no requirement of notice would have existed. Moreover, merely incorporating the word, 'license' or 'licensee' in any document would have been suffice to draw the conclusion that the premises were let out on license basis, then there are some other documents on record which mentions the term 'rent' and 'landlord - tenant'. A document Ex.PW1/D1 was confronted to PW1 during his cross-examination which was duly admitted by him that he wrote the said letter dated 24.03.1984 wherein he informed the insurance company that the rent in respect of the suit property is proportionately equal between him and his brother (since expired). Even the said document mentions the word 'tenant' for the defendant company. Moving further, one another document Ex.PW1/D2 was confronted to this witness during his cross-examination which he also admitted to have been signed and returned by him and this document categorically mentions about the enhancement of rent by 10% under the Rent Control Act which was sent to defendant company by PW1 and this document outrightly demolishes the version of the plaintiffs that the suit property was not let out on rent, rather on 'license' basis....
Hence, it is amply clear merely mentioning of the term 'license' in some of the documents or terming the periodical payments as 'license fee' would not be sufficient to qualify the relationship between the parties as that of the 'licensor - licensee'. Rather the intention and the conduct of the parties pursuant to the documents executed is to be seen.
9. Ld. Trial Court hold the view that, the manner in which suit property had been in possession of the defendant since last several years and the absence of any specific clause in the agreement RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.6 of 22 between the parties which could have shown that the ultimate possession and control over the suit property vested in the hands of plaintiffs, the defendant was a tenant and not licensee. While returning finding on issue no.(iii) ld. Trial Court observed that no Will was ever adduced in evidence by the plaintiffs which is made basis for the devolution of share from Kedar Nath to Sumer Nath. Also, it is observed that PW1 gave very cryptic and evasive replies during cross-examination leading the court to fathom that he tried to conceal material facts and approached the courts with unclean hands and as such, this issue was also decided against him.
10. Notice of the appeal was issued to respondent and same was duly served upon the respondent on 21.12.2018, however, respondent did not appear and upon its non-appearance twice cost was imposed to the tune of Rs.5500/- but despite this respondent failed to appear and proceeded ex-parte on 30.08.2019.
GROUNDS OF APPEAL A. Holding that the defendant / respondent herein was in fact a tenant in the 'premises in suit' (being the premises subject matter of this suit / appeal) by ld. Trial Court is unsustainable in View of the fact on the face of the admitted documents on record (particularly Exhibit PW-1/2 dated 16.09.1969), the defendant / respondent herein Oriental Insurance Co. Ltd. (for short, 'OIC'), being the successor-in- interest (on nationalization of the Insurance business way back in 1972-73) of M/s. Eagle Star Insurance Company Limited (for short, 'Eagle') was apparently merely a 'licensee' in the 'premises in suit' (inasmuch after due negotiations between the owners / plaintiffs and / or their predecessors-in-interest, on one hand, with 'Eagle' on the other hand in respect of the 'premises in suit' the 'right' was given to RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.7 of 22 'Eagle' was merely a right to use and occupy the 'premises in suit' as a licensee; and did not create, on a holistic reading of the document Exhibit PWl/2 dated 16.09.1969, a lease in respect of the 'premises in suit').
B. The Ld. Trial court gravely erred in not appreciating the fact that even at the time the plaintiffs had served upon the 'OIC' (the respondent herein) their notice dated 14.11.2003 [(Exhibit PW1/3) requiring the defendant / respondent herein 'OIC' to remove their belongings from within the 'premises in suit' and hand over the actual physical vacant possession of the (erstwhile) licensed portion (i.e., the 'premises in suit') to the plaintiffs / appellants herein], the defendant / respondent herein 'OIC' did not refute the fact that as per the original 'contract' of 1969, the 'premises in suit' were entrusted to Eagle for its use and occupation merely as a 'licensee' (and not as a 'tenant'). It goes without saying that this silence of 'OIC' even in 2003, on the part of 'OIC' (on receipt of the legal notice Ex PW -1/3) went to clearly establish that 'OIC', the respondent herein, being a successor of 'Eagle' (on nationalization of the business of Insurance) could / did not 'acquire' a title better than that of 'Eagle' in respect of the 'premises in suit' (and thus propound before the learned court below in this action that it was in fact a 'tenant' in the 'premises in suit' and not a 'licensee', as propounded by the plaintiffs / appellants). C. The ld. Trial court failed to appreciate that, while acknowledging receipt of the notice Exhibit PW1/3 dated 14.11. 2003 addressed to the defendant / respondent herein 'OIC' by counsel, acting for and on behalf of the plaintiffs / appellants herein, the defendant / respondent No. 1 had not traversed or disputed in the reply / acknowledgement thereof (which reply is Exhibit PW1/4 dated RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.8 of 22 03.12.2003), the fact that the defendant / respondent herein 'OIC' since 1969 till that day was merely a 'licensee' in the 'premises in suit' and not a lessee, as was being mischievously urged in the written statement in hand.
D. The ld. Trial court erred in holding OIC as a tenant instead of licensee on account of inadvertent use of the word 'tenant' by plaintiff in consequential / irrelevant communication scribe by plaintiff and address to defendant.
E. The ld. Trial court erred in subscribing to the submission of the defendant that because it was in exclusive use and occupation of the 'premises in suit', it was a 'tenant' in the 'premises in suit' and could not be termed (notwithstanding the initial 'contract', as evidenced by Exhibit PW 1/2 dated 16.09.1969) to be a 'licensee' in the 'premises in suit'. The learned trial Court failed to notice and appreciate that on the face of the documentary evidence on record, it was clearly established that the defendant / respondent No. 1 herein had only been permitted to use and occupy the 'premises in suit' and was never put in as a tenant (in exclusive possession of the 'premises in suit').
F. The ld. Trial court failed to appreciate that from the documents on record, it was evident that the usufruct paid by the defendant / respondent herein OIC to the plaintiffs / appellants herein, jointly or severally, was invariably (and rightly) termed to be 'license fee' by the defendant / respondent No. 1 herein and was never propounded to be 'rental' paid / payable by a 'tenant' to the landlord in respect of the 'premises in suit'.
G. The ld. Trial court got swayed by the fact that merely because the defendant / respondent herein was using the 'premises in suit' as RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.9 of 22 its office, where for it was, as alleged, in exclusive possession of the 'premises in suit', the defendant (respondent herein) was a 'lessee' in respect of the 'premises in suit' and not a 'licensee', as was being propounded by the plaintiffs / appellants herein. H. The ld. Trial court while criticizing the plaintiffs / appellants, failed to appreciate that the conduct of the defendant / respondent herein 'OIC' was apparently deplorable in view of the fact that the original contract (Exhibit PW1/2 dated 16.09.1969) which was admittedly executed / scribed by 'Eagle' soon after 'Eagle' was inducted as a 'licensee' in the 'premises in suit' after mutual oral agreement / contract, had denied in the written statement the very existence of the admitted document PW1/2, [which was later on {during the cross examination of DWI (Shri Jagdish Kumar)} found to be available on the records of the defendant / respondent No. 1]. I. The ld. Trial court erred in distinguishing the latest case laws / precedents cited before it by the plaintiffs / appellants propounding that the ratio decidendi' of those precedents and opining that the said ratio decidendi' of those precedents were inconsequential for the adjudication of this cause, more so as the dispute / controversy in this cause [whether Exhibit PWl/2 correctly recorded and concluded the terms of the contract between the plaintiffs (and / or their predecessors-in-interest) on one hand and the defendant / respondent No. 1, IOC (and / or its predecessor-in-interest, Eagle) on the other hand] was very different from those determined in those other matters / precedents (more so as the facts to the cases were very different).
J. The ld. Trial court failed to appreciate that in View of the existence of the terms of the contract in writing (Exhibit PWl/2; an RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.10 of 22 admitted document), oral evidence or intrinsic evidence could not be led to establish that what was enumerated regarding the terms of the contract in the aforesaid communication was a wild and reckless enunciation of the oral contract between the parties and, therefore, evidence could be led, as also entertained, on the issue (notwithstanding Sections 91 and 92 of the Evidence Act) to establish the real purpose, scope and intent of the said admitted contract Ex.PW1/2.
K. The ld. Trial court failed to appreciate the fact that the purported evidence (more so the oral evidence) led before it for and on behalf of the defendant / respondent herein by its Senior Divisional Manager, Shri Jagdish Kumar, was on the face of the affidavit [examination in chief Ex DW l/A] itself, farcical and / or inadmissible in evidence, as it did merely enumerate facts in the knowledge of the deponent (which can be stated by a witness) but was a bag full of presumptions, assumptions and / or conclusions arrived at by that witness, even though he was personally not aware of what was orally agreed to and reduced into writing at the time the 'premises in suit' were handed over by the 'owners' to 'Eagle' (predecessor-in-interest of the defendant / respondent herein) for use as its office at the rear side on the first floor in the building bearing No. 60, Queens Way (now commonly known as, Janpath), New Delhi-110001. L. The ld. Trial court in the facts and circumstances of this case ought to have necessarily discarded the testimony of DWI, Shri Jagdish Kumar who had admittedly no personal knowledge about the facts of the case and in any case his cross examination revealed the truth sufficient enough to show that what was being propounded by the plaintiffs / appellants herein was true to the core; and the RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.11 of 22 ostensible defense farcical.
M. The ld. Trial Court erred in discarding best evidence and in fact document(s) that were available before it to establish that the premises in reference had been given by the 'owners' in 1969 to 'Eagle' (predecessor-in-interest of the present defendant / respondent No. 1) for use and occupation merely as a 'licensee' and there never took place any transfer or conveyance of rights (of a 'lease') in immovable property and in particular in the 'premises in suit' in favour of the said 'licensee' 'Eagle', either then or at any point of time thereafter.
N. The ld. Trial Court erred in being swayed to a large extent on the statement (cross-examination of PW1) realizing very little that he was merely a co-owner of the building in reference and neither a chronic and nor a seasoned litigant who was well aware of the law on the subject to distinguish between a 'lease' and a 'license. O. The ld. Trial Court has completely disregarded the reply to the said legal Notice dated 03.12.2003 Ex. PW 1/4 which is not only antithetical to the averments made by the defendant in his written statement which have not been denied by DW1 in his cross examination but also has no mention in the written statement. P. The ld. Trial court has placed reliance on document exhibited by the defendant company (1) Ex. PW 1 / D1 letter dated 24.03.1984 This letter has only been signed by one of the co-owners. This letter has been drafted by a tax attorney who was not privy to the license agreement (2) Ex AW 1/2 notice dated 24.04.1985 again this notice does not bear the signatures of the plaintiff and has been drafted by an attorney who did not have knowledge of the license agreement; (3) Ex. PW l / D2 letter dated 29.01.1997 Plaintiff No. 1 being a layman RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.12 of 22 inadvertently without knowing the difference between a lessee and licensee sent the letter which does not seem to have been self drafted and again does not bear the signatures of Shri Kedar Nath (now deceased).
The respondents have not shown that any enhanced rent was ever accepted or for that matter any DR's under Section 27 of the Delhi Rent Control Act were ever filed; (4) Ex. PW 1 / D3 letter dated? This unsigned document where the words DRAFT LETTER have been stroked only follows the language of Ex. PW 1 / D1, (letter dated 24.03.1984) and does not afford any conclusive inference on the relationship between the plaintiff(s) and the respondent. Q. The learned Trial Court Judge has based her judgment on only selective parts of the Cross Examination of PW-l while not appreciating the fact that the witness was a layman and Senior Citizen and did not possess legal knowledge while completely ignoring the Cross Examination of DW-l who is a Law Graduate. R. The learned Trial Court in her impugned judgment did not appreciate the fact that the respondent has failed to place on record even a single document to establish that the parties ever were ad idem on the issue that the defendant / respondent herein was ever accepted or acknowledged to be a bonafide "tenant" in respect of the 'premises in suit'.
S. The learned trial Court in the impugned judgment in para 17 has wrongly termed documents collectively marked as X as receipts / vouchers having completely ignored that these are not vouchers but correspondence sent to the plaintiffs / appellants herein by the defendant / respondent herein regarding payment of "licence fee" in respect of the 'premises in suit' which clearly establish that till the RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.13 of 22 institution of the present suit the defendant / respondent herein continued to unequivocally maintain themselves to be licensee in the 'premises in suit'.
T. Since the learned trial Court is terming these documents as vouchers/receipts which is clearly not the case as can be inferred from reading them, it is but apparent that the numerous documents placed on record by the plaintiffs have not been correctly appreciated and considered.
U. The learned trial Court in para 24 of the impugned Judgment has said that "merely mentioning the term "licence" in some of the documents or terming the periodical payments as "licence fee" would not be sufficient to qualify as the relationship between the parties as licensor licensee." Then according to this statement the same analogy can be drawn that even some inadvertent letters using the word "tenant" do not mean that there is a relationship of landlord and tenant.
V. The question of estoppel that has been averred to by the learned trial Court Judge if applicable will lie only on one of the co- owners but also since the respondents have in their letters to the plaintiff accepted themselves in Ex. PW 1/2 and Mark X (Colly) to be 'licensee' then they are also bound by the same logic of estoppel and cannot claim to be 'tenants'.
W. The learned trial Court Judge has based her impugned Judgment on selective use of the question of estoppel while completely ignoring that estoppel must also apply to the defendant / respondent herein since they in their correspondence admitted themselves to be 'licensee' and have not denied the existence or knowledge of Ex. PW 1/4.
RCA No.4/18Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.14 of 22 X. In para 24 of the impugned Judgment the learned trial Judge states that imposing conditions in licence agreements "runs contrary to the very concept of giving property on licence basis" this is a wrong interpretation of law and shows a presupposed and predetermined mindset of the learned presiding Officer; There are ample licencee deeds available with inherent conditions, the question whether the conditions are strict depends among other factors upon the relevant time of the agreement the trust the parties place between themselves and not having strict conditions does not mean that the intention of the parties is any different. The document relied upon by the plaintiffs Ex. PW 1/2 was drafted and written by the predecessor to the defendant / respondent herein and they certainly would have wanted to have easer conditions rather than strict conditions but the basic intention of the document has been wrongly assumed and wrongly inferred by the learned trial Court.
11. Final arguments heard on behalf of appellant/plaintiff.
12. Record perused.
13. The perusal of the terms of Ex.PW1/2 in a holistic manner is necessary to reach out to the operative intent of the parties with respect to the issue of licensor - licensee or lessee - lessor relationship between the parties. Ex.PW1/2 demonstrate that defendant through its Branch Manager communicated to M/s Kedar Nath and Surendra Nath in view of the discussion they had over requirement of office accommodation and confirmed the agreement for the use of back portion on the first floor at 60/1, Janpath, New Delhi on the following terms:-
(i) We will use the premises for office use only. Our associate Company Marine & General Insurance Co. Ltd., will also use the office premises with us.RCA No.4/18
Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.15 of 22
(ii) A monthly licence fee of Rs.1225/- will be paid by us quarterly in advance effective from 16th September, 1969.
(iii) The Licence fee is also inclusive of hire charges of four ceiling fans and furniture.
(iv) The Licence fee is also inclusive of our right for erecting neon-sigh board in the front portion of the premises or any other signboard electrically operated or otherwise, whether the same is used by us or not.
(v) We will be your licencees for the use of the said accommodation and the said licence can be terminated by six months notice on either side.
(vi) The premises have been altered and renovated by you as desired by us at your cost to our satisfaction and its possession has been handed over to us today.
(vii) The premises will be whitewashed and minor repairs will be done by you every year.
(viii) We understand that you have plans to cover the open space. We on our part would extend all the cooperation in the construction/alteration of that portion and we shall have the first preference for this additional space at the existing rate.
14. A bare reading of the terms of Ex.PW1/2 make it plain that the defendant had entered into a relationship of licensor - licensee as in term no.(v) it is categorically stated by the defendant that, "We will be your licensees for the use of the said accommodation.....". Further the defendant used the term 'license' and 'license fee' making it very simple to understand the jural relationship between them. Ex.PW1/2 is signed by a Branch Manager and it is an admitted document. It is a matter of common understanding that Branch Manager of a limited company is not a layman but rather an educated man who would have clearly understood the meaning and import of word 'licensee' and 'license fee'. Further, Ex.PW1/2 demonstrates that the use of the RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.16 of 22 premises by the defendant was permissive as defendant was permitted to erect neon-signboard in the front portion of the premises or any other signboard electrically operated or otherwise and also use four ceiling fans and furniture and the license fee inclusive of the hire charges of four ceiling fans and furniture and for erecting neon- signboard which fact fortifies the claim of the plaintiff. It is pertinent to mention that defendant had tried to deny Ex.PW1/2 by making an averment in the written statement, however, Ex.PW1/2 was duly proved, and his plea that the term 'license fee' was used instead of monthly rent as per the desire of the landlord as a camouflage, the same appears to be have been made by DW1 to conveniently change its position to suit its defence which is not only contrary to the record but an attempt to mislead the court at the first place as Ex.PW1/2 was found available on the records of defendant. In this backdrop coupled with the fact that DW1 was not executant of Ex.PW1/2 and privy to the said agreement, the reliance on his testimony by the ld. Trial Court was not correct.
15. It is a matter of record that M/s Eagle Star Insurance Co. Ltd. was merged into Oriental Insurance Co. and Oriental Insurance Co. stepped into its shoes. It is a matter of record that Ex.PW1/3 was sent by plaintiffs to respondent (OIC) and as per record OIC replied to said legal notice which is Ex.PW1/4 and ex-facie did not refute the original contract of 1969 as embodied in Ex.PW1/2 and in fact informed the plaintiffs that license fee has already been released, and therefore, apparently ratified the same and as such, the OIC being successor- in-interest tacitly admitted the acquisition of legal status of its predecessor which as per Ex.PW1/2 was of licensee.
16. The Ld. Trial Court's assumption in holding that plaintiff was a RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.17 of 22 lessor instead of licensor on the basis of use of the word 'tenant' by plaintiff in communication scribed by plaintiff addressed to defendant is palpably wrong as the construction of terms of Ex.PW1/2 would go to show that parties intended to enter into a license agreement and the said term has been used categorically with previous discussion and specific terms were reduced into writing to the exclusion of ambiguity. It is a matter of common knowledge that common man cannot distinguish the legal distinction between the term 'lessee' and 'tenant' and if due to inadvertence, the plaintiff used the term 'tenant' for defendant the same cannot wither away the real relationship between the parties which emanates from a written document executed and admitted by the defendant.
17. The ld. Trial Court had observed that defendant was in exclusive use and occupation of the suit property, however, the said observation is fallacious as the terms of Ex.PW1/2 clearly show that the defendant was only permitted to use and occupy the suit premises so much so that specific permission was granted to erect neon-signboard and use four ceiling fans and furniture. Even in future communication the usufruct paid by the defendant/respondent was termed as license fee. Defendant being a limited company and its day to day business being conducted by the managers and they cannot be expected to have used unnecessary/self destructive terms in the official communication. Also, the mere fact that defendant was using suit premises as its office is no ground to assume that it was exclusively possessed by it and the jural relationship between the parties was of lessor and lessee.
18. It is noteworthy that once the terms are contained in a document in a lucid and unambiguous manner any evidence in the RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.18 of 22 form oral or otherwise cannot be led to contradict, the said terms of the contract as per the mandate of Section 91 & 92 of Indian Evidence Act, 1872. Accordingly, Ex.PW1/2 stood proved document which clearly establishes the relationship between the parties as of 'licensor' and 'licensee'.
19. The reliance of the ld. Trial Court on document Ex.PW1/D1 & Ex.AW1/2 for returning finding is highly misplaced as these documents were purportedly drafted by tax attorney/attorney, as such, any inadvertent omission by the attorney cannot be attributed to the plaintiff to the extent that the whole construction of Ex.PW1/2 would be changed in entirety that is to say that the jural relationship of licensee established during inception would be changed to lessee. These documents has to be read in the light of Ex.PW1/2 and the evidence. So far as Ex.PW1/D2 is concerned, the same though apparently written by plaintiff no.1 seeking enhancement of rent by 10% under the Rent Control Act cannot alone alter the jural relationship between the parties in the absence of evidence to the contrary and the contention raised on behalf of plaintiff that he is a layman and out of inadvertence without knowing the difference between a lessee and licensee, appears to be reasonable. It is worth noticeable that respondent never filed any petition under 27 of DRC or excepted the enhancement of rent by plaintiff which gives credence to the evidence produced by the plaintiff. With reference to Ex.PW1/D3 it appears that the confusion relating to legal terminology qua the relationship of the parties permeated and assuming the relationship of lessor and lessee between the parties, the said communication was made which in itself is not sufficient to dislodge the real relationship between the parties of licensor and licensee.
RCA No.4/18Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.19 of 22
20. As per record PW1 at the time of his cross-examination was a senior citizen and without any legal background and the matter being old as the parties entered into the agreement on 16.09.1969, it is quite possible that he may not have answered the questions put to him while considering its legal implication and in this scenario the reliance of the ld. Trial Court on selective portion of his testimony was incorrect. On the contrary DW1 who tried to mislead the court being a law graduate, his testimony was ignored.
21. In the considered view of this court after considering the documentary evidence Ex.PW1/2, Ex.PW1/3, Ex.PW1/4 and the subsequent receipts which describe the position of defendant as 'licensee' and the payments made by him from time to time to plaintiffs as 'license fee' coupled with the fact that he was not having exclusive possession as he was permitted to use the suit premises for his office use with a rider that with the notice of six months is liable to be evicted is sufficient to construe that defendant was licensee. Court is required to take a balance approach while considering the documents of the rival parties. If mentioning the term 'license' and periodical payment as 'license fee' is not sufficient to qualify as the relationship between the parties as licensor and licensee then in the similar vein the inadvertent use of word 'tenant' by plaintiff does not create a relationship of landlord and tenant. Further, the assumption that imposition of condition in license agreement runs contrary to the very concept of giving property on the license basis is fallacious given the fact that defendant himself crafted those condition for itself.
22. In the judgments placed on record by the plaintiff are squarely applicable to the facts of this case. In Hanuman Dutt Bajpai Vs. Budha Singh (1997) DLT 414, it was held that the defendant was RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.20 of 22 supposed to prove that he was in occupation of the disputed property as a tenant. The document creating any relationship between the parties has to be construed in its entirety and the intention of the parties has to be gathered by reading its terms and conditions and not only drawing a conclusion from the words used such as 'licensee' or 'license fee'.
23. Considering the overall facts and circumstances, in the light of judgments relied upon by the parties, the operative intent can be deciphered from the evidence and plaintiff has been able to prove their case by proving that the documents establish the relationship of 'licensor' and 'licensee' between the parties and defendant does not have exclusive possession of the suit premises and the plea of the defendant that he was inducted as a tenant in the suit premises remains unsubstantiated in the present gamut of circumstances. The documentary evidence produced by the plaintiff remains proved. Defendant could not rebut its veracity or establish the contrary. Accordingly, appeal is allowed. The impugned judgment and decree dated 30.08.2018 passed by ld. Trial Court is hereby set aside. The suit of the plaintiff is decreed. Plaintiff is entitled for decree of mandatory injunction as prayed with costs. Decree sheet be prepared accordingly. TCR be sent back to court concerned with a copy of the judgment. Appeal stand disposed off and be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 20.07.2020 (DR. PANKAJ SHARMA) ADDITIONAL SENIOR CIVIL JUDGE, PATIALA HOUSE COURTS, NEW DELHI RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.21 of 22 RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd.
20.07.2020 File taken up today for pronouncing of judgment.
LDOH NDOH NDOH NDOH 28.03.2020 29.04.2020 22.06.2020 17.08.2020 Present: None.
Vide separate judgment of even date announced in open court, appeal is allowed. The impugned judgment and decree dated 30.08.2018 passed by ld. Trial Court is hereby set aside. The suit of the plaintiff is decreed. Plaintiff is entitled for decree of mandatory injunction as prayed with costs. Decree sheet be prepared accordingly. TCR be sent back to court concerned with a copy of the judgment. Appeal stand disposed off and be consigned to Record Room.
(DR. PANKAJ SHARMA) ADDITIONAL SENIOR CIVIL JUDGE, PATIALA HOUSE COURTS, NEW DELHI RCA No.4/18 Surendra Nath & Anr. Vs. The Oriental Insurance Co. Ltd. Page no.22 of 22