Madhya Pradesh High Court
Rajesh Gupta vs Smt. Urvashi Marwaha on 19 June, 2012
Equivalent citations: AIR 2012 MADHYA PRADESH 137
1 W.P. No. 6548/2012
HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Petition No.6548/2012)
Rajesh Gupta
Vs.
Smt. Urvashi Marwaha and another
PRESENT : HON'BLE SHRI JUSTICE SANJAY YADAV
Counsel for Petitioner Shri Ashok Kumar Jain, Advocate
Counsel for respondents Shri Siddharth Gulati, Advocate
O R D E R (19/6/2012) PER SANJAY YADAV, J The respondent No. 1 is a proprietor of a Saw Mill, named and styled as Durga Trading Company situated over plot No. 1099/1100, Narsingh Ward, Madan Mahal, Village Amanpur, Jabalpur, Bandobast No. 5, Patwari Circle No. 28 Khasra No. 90/1. In the said premises three Saw Machines, of which one belong to respondent No. 1 and two belong to respondent No. 2 are being operated on the strength of the licence issued by the Forest Department, Government of Madhya Pradesh, under the provisions of the Madhya Pradesh Kashtha Chiran (Viniyaman) 1984 and the Rules made thereunder, viz., The M.P. Kashtha Chiran (Viniyaman) Niyam, 1984.
2. The petitioner is a proprietor of M/s. Shri Ram Kashtha Udyog and deals in the business of purchase and sale of timber.
3. That, for the purpose of sawing the timber purchased by the petitioner, an agreement was entered between the respondent No. 1 and 2 W.P. No. 6548/2012 the petitioner on 30.1.2009; whereunder, on certain terms and conditions permission was granted to the petitioner to use the sawing machine.
4. It was agreed between the parties, i.e, between the respondent No. 1 and the petitioner that:
"1- ;g fd i{kdkj dza- 1 mijksDr of.kZr viuh vkjk e'khu i{kdkj dz-a2 dks flQZ ou foHkkx ds ljdkjh fMiks vFkok vU; oS/kkfud L=ksrks ls izkir dh xbZ ydM+h dh fpjkbZ dk;ksZ gsrq gh miyC/k djsxkA 2- ¼v½ ;g fd i{kdkj dz-a 2 }kjk Lo;a dh ns[kjs[k esa mijksDr of.kZr dk"B dh fpjkbZ gsrq vko';d lkeku dh O;oLFkk tSls fd feL=h] gsYij vko';d etnwj ,oa e'khu ds lacaf/kr lkeku tSls fd vkjh] dwM vk;y vkfn midj.kksa dh iwfrZ dk nkf;Ro Lo;a dk gksxkA vkjk e'khu pkyw gkyr esa i{kdkj dz- 1 ds }kjk ydM+h fpjkbZ dk;Z djus gsrq iznku dh xbZ gSA vr,o vuqca/k lekIr gksus ij] e'khu ,oa vU; midj.k i{kdkj dz-a 2 ds }kjk gLrkarj djrs le; **tSlh Fkh oSlh gh** fLFkfr es okfil lkSaih tkosxhA bl chp fdlh Hkh izdkj dh VwV&QwV] j[k &j[kko] ejEer] uqdlkuh dh iw.kZ tckonkjh i{kdkj dz- 2 dh gh gksxhA ¼c½ vxj i{kdkj dza- 2 ds }kjk viuh LosPNk ls O;olk; ls lacaf/kr ;k fdlh Hkh izdkj dk iqu% fuekZ.k ;k foLrkj dk;Z] i{kdkj dza- 1 ds fcuk fyf[kr Lohd`fr ds mlds O;olkf;d izfr"Bku esa fd;k tkrk gS rks og fof/k leLr Lohd`fr ds vHkko esa ekU; ok ca/ku dkjh ugha gksxsA rFk vuqca/k i= dh lekfIr i'pkr] ,slh py] vapy lEifRr ij O;; dh xbZ jkf'k ij dksbZ fookn] nkok 'kwU; le>k tkosxk] rFkk ,slh fLFkfr esa Loeso fufeZr fuekZ.k dk;Z ij oS/kkfud vf/kiRo i{kdkj dza- 1 dk iw.kZr;% gksxk] o fdlh Hkh rjg dh {kfr&iwfrZ ds fy;s mRrjnk;h ugha gksxkA mDr laca/k esa Hkfo"; esa fdlh Hkh izdkj dk nkok ;k Dyse jkf'k ekU; ugha gksxhA 3 ;g fd i{kdkj dza- 2 viuk Lora= ,oa fof/k&leLr O;kikj djsaxs vkSj laca/kh dk;ksZ dh ljdkjh vFkok xSj ljdkjh laLFkkvksa] foHkkxksa] ,oa dk;kZy;ksa ds izfr os Lo;a iw.kZr;k tckonkj gksaxsA vFkkZr muds }kjk fdlh Hkh izdkj ds voS/kkfud dk;ksZ ds fy;s i{kdkj daz- 2 dks nks"kh ;k mRrjnkf;Ro ugha gksxkA 4 ;g fd i{kdkj daza- 2 ds }kjk] mDr iz;qDr e'khu flQZ Lo;a ds }kjk] ou foHkkx ds ljdkjh fMiks vFkok vU; oSKkfud L=ksrksa ls izkIr vFkok dz; dh xbZ dk"B dh fpjkbZ gsrq gh iz;qDr dh tkosxhA vU; nwljs fdlh dk;Z gsrq vU;Fkk fdlh nwljs O;fDr ;k QeZ dks lc&ysV ugha dh tkosxhA mDr fu;e dk mYya?ku ik;s tkus dh fLFkfr esa e'khu] ifjlj dk;Z ij dCtk ysdj rqjUr dk;Z ckn dh dk;Zokgh djr gq;s ;g vuqca/k i= gtkZus lfgr fujLr djus dk vf/kdkjh i{kdkj daz- 1 dk gksxkA 5 ;g fd O;ogkfjd rkSj ij i{kdkj daz- 2 dks dk;kZy; ,oa eky j[kus gsrq xksnku ,oa [kkyh e'khu ls yxk gqvk IykV] dk;z gsrq mi;ksx esa ykus gsrq lqfo/kk nh xbZ gSA ftldk mi;ksx ydM+h O;olk; ls lacaf/kr dk;ksZ gsrq fd;k tkosxk vU; fdlh dk;Z gsrq ugha 6 ;g fd vfXu vFkok vkdfLed nq/kZVukvksa gsrq eky& e'khu] 'ksM] vkfQl] xksnke vkfn lacaf/kr deZpkfj;ksa dk chek i{kdkj daz- 2 }kjk djokuk vfuok;Z gS vU;Fkk fdlh Hkh izdkj dh 3 W.P. No. 6548/2012 vkdfLed nq?kZVuk gksus ij iw.kZ&:is.k tckonkjh {kfriwfrZ gtkZuk uqdlkuh lfgr i{kdkj daz- 2 dh gksxh 7 ;g fd fctyh foHkkx }kjk iznRr ekfld 'kqYd uxj fuxe QSDVjh VSDl] ,oa ou foHkkx ls lacaf/r VSDl Qhl] 'kkldh; ;k
v)Z'kkldh; 'kqYd ds Hkqxrku dh iw.kZ tckonkjh Hkh i{kdkj daz-
2 dh gksxhA fctyh foHkkx }kjk O;olk; lapkyu gsrq Lohd`r] fctyh dk Hkkj dk miHkksx gh fd;k tosxkA vlSokf/kud :i ls vfrfjDr fo|qr izHkkj ik;s tkus 'kkldh; n.M ,oa ifj.kke Lo:i vU; uqdlkuksa ds fy;s i{kdkj daz- 2 dh iw.kZr;% ftEesnkjh gksxhA rFkk ,slh xfrfof/k;ksa esa lyaXurk ik;s tkus ij ;g vuqca/k 'kwU; fujLr ekuk tkosxkA 8 ;g fd ou foHkkx ds fu;ekuqlkj izfrekg ;k frekgh izi= Mh 1] Mh&2] Mh&3 esa fooj.kh izLrqr djus dh iw.kZr;k tckonkjh i{kdkj dza- 2 dh gh gksxhA pwafd ydM+h O;olk; ls lacaf/kr lEi.kZ dk;Z lapkyu dz; fodz; bR;kfn i{kdkj daz- 2 ds fujh{k.k ns[kjs[k esa fd;k tkrk gSA 9 ;g fd mHk; i{kksa }kjk vkiklh lgefr ls xksyk dk"B fpjkbZ gsrq nj 300@& vadu esa rhu lkS :i;s izfr ?ku ehVj dh nj ls fuf'pr dh xbZ gA i{kdkj daz- 2 ds }kjk U;wure fpjkbZ ek=k de ls de 20 ?kuehVj izfrekg dk"B fpjkbZ djokuk vfuok;Z gS vU;Fkk U;wure ek=k esa fpjkbZ gsrq dk"B miyC/k u gksus ij U;wure fpjkbZ dh ek=k vFkkZr~ 20 ?kuehVj dk"B dh fpjkbZ dk Hkqxrku izfrekg dh nj l djuk vfuok;Z gksxkA 10 ;g fd i{kdkj daz- 2 ds }kjk izfr dsys.Mj ekg ds ,d lIrkg ls Hkhrj fpjkbZ fcy izkIr gksus ij Hkqxrku fd;k tkuk vko';d gSA le;kof/k ds varxZr Hkqxrku u fd;s tkus ij vxj i{kdkj daz- 1 vxj vko';d le>s rks i{kdkj daza- 2 dh ydMh ysdj rFkk dks cspdj {kfr&iwfrZ lfgr fpjkbZ jkf'k olwy dj ldrk gSA i{kdkj daza- 2 dksbl ij dksbZ mtz ugha gksxkA 11 ;g fd iwoZ esa fd;s x;s vuqca/k i= ds vuqlkj izkIr vfxze jkf'k tekur ds crkSj :- 15000@& ¼iUnzg gtkj :i;s½ uxj] nksuksa i{kdkjksa dh vkilh lgefr ds }kjk izkIr dh xbZ Fkh fls bl orZeku vuqca/k i= ds varxZr vxzsf"kr fd;k x;k gSA vc fdlh izdkj dk Hkh dksbZ vkilh ysunsu ckdh 'ks"k ugha gSA bl vfxze jkf'k dk lek;kstu vuqca/k i= dh le;kof/k lekIr gksus ij gh ,d ekg dh vfrfjDr vof/k ds i'pkr gh okfil fn;k tkosxkA 12 ;g fd mijksDr vuqca/k i= dh vof/k flQZ 11 eghuksa ds fy;s gS] mHk; i{k vkilh lgefr ls bl vuqca/k i= dks iqu% vkxs c<+k ldrs gSA 13 ;g fd mijksDr of.kZr 'krksZ ds vk/kkj ij vxj fdlh Hkh i{k }kjk fdlh Hkh 'krksZ ds mYya?ku fd;k tkrk gS vFkok og viuh LosPNk ls ;k vU; dksbZ O;fDrxr dkj.kksa ls] bl vuqca/k i= dks le;&iw.kZ fujLr djuk pkgrk gS rks mls nwljs i{k dks fyf[kr vFkok ekSf[kd :i ls ,d ekg dk le; nsrs gq, lwpuk nsuk vfuok;Z gSA rkfd bl le;kof/k ds varxZ/k mHk; i{k mfpr O;oLFkk dj ldsA 14 ;g fd mHk; i{k fdlh Hkh vlkekftd rRoksa dks ifjlj esa izso'k ;k teko ugha djsaxs tks fd Hkkjrh; naM fo/kku izfdz;k ;k vkpj.k fuokj.k fu;e ds foijhr gksaA 15 ;g fd eq[; }kjk ls ifjlj esa izos'k gsrq 'kkldh; fu;eksa ds vUrxZr lw;Zdky ls lw;kZvLr rd gh ydM+h fpjkbZ dk dk;Z fd;k tkosxkA ,oa bl le;kvof/k ds igys vFkok ckn esa fdlh 4 W.P. No. 6548/2012 Hkh O;fDr dk izos'k okftZr jgsxkA mDr fu;e dk mYya?ku fd;s tkus ij vuqca/k i= dks fujLr ekudj fpjkbZ dk;Z cUn djus dk vf/kdkj i{kdkj daza- 1 dk gksxkA 16 ;g fd Lo; ds }kjk fpjkbZ gsrq izLrqr ydM+h dh lqj{kk] ,oa vU; lHkh midj.kksa lacaf/kr phtksa dh lqj{kk dk nkf;Ro i{kdkj daz- 2 dh gksxhA 17 ;g fd mijksDr vuqca/k i= esa of.kZr lHkh 'krksZ vkSj fu;eksa dks mHk; i{k }kjk ekU; djrs gq,] iw.kZ jkth [kq'kh] gks'kksgokl] ilUufpRr ,oa fcuk fdlh vuqfpr ncko ls i<+dj le>dj le{k lkf{k;ksa ds gLrk{kj fd;s rkfd lun jgs vkSj oDr dke vkosA "
5. Three things were clear from above agreement that the same was for the period of 11 months with a renewal clause. That, the permission granted was only to use the saw machine and no interest in immovable property was created in favour of the petitioner. And that, as per clauses 4, right to revoke the permission to use the saw machine was reserved with the respondent No. 1, the owner and occupier of the premises in question.
6. The agreement dated 30.1.2009 when construed in its entirety reflects that a licence to use the saw machine for sawing the timber was granted to the petitioner and no right in immovable property was created.
Thus, satisfying the test laid down under Section 52 of the Indian Easements Act, 1882, whereby the 'licence' is defined as "where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence".
7. It has been held in Associated Hotels of India Ltd. v. R.N. Kapoor :AIR 1959 SC 1262, that, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof it will be a licence. But if there is a transfer of interest in land and exclusive possession is given to the grantee then it is a lease. (in this context please also see Board of Revenue etc. v.
A.M. Ansari AIR 1976 SC 1813).
5 W.P. No. 6548/20128. Recently in Bharat Petroleum Corporation Ltd. v. Chembur Service Station : (2011) 3 SCC 710, the Supreme Court affirms following principles culled out from the judicial opinion reflected in Errington v. Errington (1952) All E.R. 149, (i) to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (ii) the real test is the intention of the parties whether they intended to create a lease or a licence; (iii) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. (Please also see Pradeep Oil Corporation v. Municipal Corporation of Delhi and another):
(2011) 5 SCC 270.
9. That, by agreement dated 30.1.2009 the respondent No. 1 permitted the petitioner to enter the premises for the purpose of using the saw machine belonging to the respondent No. 1. Under the agreement the petitioner cannot enter the premises for any other purpose than to use the saw machine. The agreement as apparent from the terms therein does not thus create any tenancy, right in the premises in favour of the petitioner.
10. That, on expiry of the term of licence the petitioner was called upon not to enter the premises and was required to take away the timber lying in the premises. Letters and reminders to that effect were sent to the petitioner on 4.11.2010 and 20.11.2010. The petitioner, to overcome the same filed the suit for permanent injunction, seeking the relief that a judgment and decree for permanent injunction be passed and the defendants be restrained permanently from dispossessing the plaintiff from plot No. 1093/1100, Narsingh Ward, Jabalpur by force and they be directed to follow the due procedure of law in evicting the plaintiff. The 6 W.P. No. 6548/2012 defendants be further restrained from causing any disturbances in the smooth running of the business of the plaintiff in the premises.
11. Along with the suit petitioner filed an application under Order 39 Rules 1 and 2 Code of Civil Procedure, 1908 seeking temporary injunction of restraining the respondent No. 1 from taking any coercive steps.
12. On being summoned, the respondents besides filing the written statement filed a counter claim seeking permanent injunction to the following extent:
"oknh fookn xzLr laifRr tks fd izfrnkosa ¼vfrfjDr dFku½ dh dafMdk dzaekad 1 esa of.kZr gS] tks layXu uD'ks esa fn[kkbZ xbZ gS mlls izfr okfnuh ds dCts esa fdlh Hkh izdkj dk O;o/kku mRiUu u djs vkSj u gh okn xzLr laifRr ij fdlh Hkh izdkj ls izos'k ;k gLr{ksi djsa ,oa oknh ,oa mlds vU; lg;ksxh] O;fDr] izfrfuf/k] deZpkjh }kjk izfrokfnuh laifRr ij fdlh Hkh izdkj dk gLr{ksi u fd;k tk,A "
13. Along with the written statement and the counter claim the respondents herein filed an application under Order 39 Rules 1 and 2 CPC seeking temporary injunction that the petitioner be restrained from entering into the suit premises.
14. The trial court dwelt upon the two applications and by two separate orders on 5.7.2011, rejected both the applications on the findings that, the plaintiff and defendants have failed to prove the prima facie case and the irreparable injury which may be caused.
15. Though the petitioner, who is plaintiff in the suit, did not prefer any appeal against the order dated 5.7.2011 rejecting his application. An appeal under Order 43 Rule 1 (r) CPC was, however, filed by the respondents/defendants against the order dated 5.7.2011 whereby their temporary injunction application was dismissed.
16. The appeal was allowed by impugned order dated 9.4.2012, restraining the petitioner from entering into the suit premises.
7 W.P. No. 6548/201217. The appellate court while discarding the contentions by the petitioner that, interim injunction would tantamount to grant of final relief observed:
"13 [email protected] dh vksj ls izfrnkok esa fd;s x;s vfHkopuksa vkSj laca/k esa izLrqr fd;s x;s nLrkostksa ftudk mYys[k mij iw.kZ esa fd;k tk pqdk gS ds vk/kkj ij ;g Li"V gks tkrk gS fd oknxzLr laifRr ij [email protected] ds oS/kkfud dCts esa gLr{ksi djus dk iz;kl izR;FkhZ@oknh ds }kjk fd;k x;k gSA vih0@izfr0 dza0 1 Jherh moZ'kh ejokgk oknxzLr laifRr IykV ua0 1099@100 ujflagokMZ enuegy vkeuiqj tcyiqj dh Lokeh gS ,oa vuqf/k i= fnukafdr 23@1@2009 ds ek/;e ls mDr IykV ij fLFkr e'khu ydM+h fpjkbZ dk;Z gsrq izR;FkhZ@oknh dks iznku dh xbZ Fkh tSlk fd vfHkys[k ij miyC/k vuqca/k i= dh izfr ls izxV gksrk gSA vihykFkhZ@izfr0dza0 2 lqjsUnz ejokgk] izfroknh daz0 1 Jhefr moZ'kh ejokgk dk eq[;rkj gS ;g ikWoj vkWQ vVkuhZ ds voyksdu ls izxV gksrk gS ,slh fLFkfr esa izFke n`"V;k ekeyk] lqfo/kk dk larqyu ,oa viw.khZ; {kfr ds fcanq vihykFkhZ x.k @ izfroknhx.kksa ds i{k esa Li"V :i ls izrhr gksrs gS ,oa ,slk u ekudj v/kh0fopk0U;k;k0 us fu'pr :i ls =qfV dkfjr dh gSA 14 v/kh0 fopk0U;k;k0 }kjk vkyksP; vkns'k ds iSjk 5 esa ;g mYys[k fd;k x;k gS fd tgka varfje vuqrks"k ewy vuqrks"k dh gh izd`fr dk gS ogka varfje vuqrks"k ugha fn;k tk ldrk ,oa ;g Hkh mYyspk fd;k x;k gS fd izfroknh ds i{k esa ,slh dksbZ viokfnr ifjfLFkfr Hkh ugha gS ftlds vk/kkj ij izfroknh dks varfje vuqrks"k iznku fd;k tk ldsA ijarq v/kh0 fopk0U;k;k0 dk mDr fu"d"kZ ,d mfpr fu"d"kZ ugha dgk tk ldrk D;ksafd orZeku izdj.k esa fuf'pr :i ls vihykFkhZ x.k@ izfr0x.k ds i{k esa viokfnr ifjfLFkfr;ksa fo|eku gSA muds i{k es u dsoy lqn`< izFke n`"V;k ekeyk gS cfYd lqfo/kk dk larqyu ,oa viw.kksZ; {kfr ds fcanq Hkh [email protected] ds i{k esa izrhr gksrs gSA "
18. Assailing the order learned counsel for the petitioner reiterates the submissions put forth before the appellate court, that an order of final nature cannot be passed at an interim stage and that the petitioner who has acquired a right to enter the suit premises on the basis of agreement cannot be prevented from entering the premises except by recourse to law. In other words, it is urged that, unless declared by a judicial pronouncement creating a legal clog, the petitioner cannot be prevented from using the premises.
19. The proposition, as propounded in the considered opinion of this Court, may carry some weight where a person is a lesee . In which case even 8 W.P. No. 6548/2012 when there is no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. (please see: Rame Gowda(Dead) by LRs. v. M. Varadappa Naidu (dead) by LRs. And another: (2004) 15 SCC 769. The issue as to whether a tenant whose term of tenancy has expired can be evicted without recourse to law though does not crop up for consideration in the present case as it is already seen from the term of agreement dated 30.1.2009 that no right or interest in premises was created in favour of the petitioner. However, for completion of record necessary it would be to refer to the decision by a Division Bench of High Court in D.T.T.D.C v. M/s. D.R. Mehara and sons :AIR 1996 Delhi 351 wherein it is observed:
10. In our opinion, there are two different sets of principles which have to be borne in mind. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law.
This principle is laid down in Section 6 of the Specific Relief Act, 1103 (Sic 1963). That Section says that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set lip in such suit. That a person without title but in "settled" possession as against mere fugitive possession- can get back possession if forcibly disposed or rather, if disposed otherwise than by due process of law, has been laid down in several cases. It was so held by the Supreme Court in Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620, Krishna Ram Mohale v. Mrs. Shobha Venkata Rao, 1989(4) SCC 131 (136) : (AIR 1983 SC 2097), Ram Rattan v. State of U.P., 1977 (1) SCC 188 : (AIR 1977 SC 619) and State of U.P.v. Maharaja Dharmender Prasad Singh, 1989 (2) SCC 505 (516-517) : (AIR 1989 SC 997). The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India, AIR 1954 Bom 358.
9 W.P. No. 6548/201211. Before going to the other aspect, we shall refer to one of the cases cited for the appellant. In East India Hotels Ltd. vs. Syndicate Bank (1992) Suppl (2) SCC 29; there was a conflict of opinion between two learned Judges of the Supreme Court not in regard to the above principle but in regard to the question whether the appellant (owner) of the premises was bound to give back possession to the Bank (plaintiff therein) in the latter's suit for possession under Section 6 of the Specific Relief Act, 1963. Kasliwal J. held that the licence in favour of the Bank stood terminated, and the Bank was in the position of a trespasser in view of D.H. Manian v. Waman Laxman Kudav, (1970) (4) SCC 118. If dispossessed, a trespasser could not resort to Section 6 of the Specific Relief Act, 1963. The learned Judge observed that in K.K. Verma's case (AIR 1954 Bom 358) Chagla, C.J. pointed out that a tenant whose tenancy had ceased could get back possession under the summary procedure in the Specific Relief Act but that a tresspasser who had been thrown out of pos session could not go to Court under Section 9 and claim possession as against the true owner'. Kasliwal J. pointed out that the Bombay case was approved by the Supreme Court in Lalla Yeshwar Singh vs. Rao Jagjish Singh (1968 SC
620). His Lordship would allow the appeal of the owners and dismiss the suit. However Ramaswamy J. differed holding that the possession of the Bank was "settled" possession and even if the Bank was atrespasser, it could resort to Section 6 of the Specific Relief Act, 1963 if dispossessed otherwise than by due process of law. He would therefore dismiss the appeal of the owner and confirm the decree for possession. The matter was referred to a third Judge.
12. Ramaswamy, J. had occasion recently to refer to his views in East India Hotel's case while dealing with question whether a person whose tenancy had expired could be said to be in lawful 10 W.P. No. 6548/2012 possession' for purposes of grant of licence under Cinematograph Act in R.V. Bhupal Prasad vs. State of A.P. . His Lordship held that 'lawful possession' was necessary at the time of grant of licence by the licensing authority in view of the, language in the rule. For renewal of licence also, lawful possession was necessary even though the word lawful' was not used in the rules relating to renewal. His Lordship referred to M.C. Chokkalingam vs. V. Manichava sagar and to Krishna Kishore Firm vs. Government of A.P . The possession of a tenant whose tenancy expired was a tenant at sufferance and his possession Was not lawful' and he was not entitled to renewal. No writ could be issued to the licensing authority. We have referred to this case because it refers to the views expressed by Ramaswamy,J. in East India Hotels case. This is so far as the first aspect referred to by us earlier, is concerned."
20. Be that as it may, in the case at hand since the petitioner has failed to establish from the agreement in question that he is not a licencee but a tenant no presumption can be drawn of his being a tenant.
21. On the contrary as observed from the agreement in question, the petitioner was only given the permission to use the machine and not the premises as would create any right in favour of the petitioner over the premises. Since the physical possession of the property in question is retained by the respondent No. 1, the impugned order which restrains the petitioner from causing any interference cannot be faulted with, as would call for any interference.
22. In respect of the contention that the granting of the interim relief, i.e., restraining the petitioner from interfering with the possession of the respondent No. 1 tantamount to granting of final relief, it is established that the petitioner was never placed in possession of the premises, he was only permitted to use the machinery and the physical possession of the premises was retained by the respondent No. 1. Thus, a very strong prima facie case having been made out by the respondent No. 1, the appellate court was 11 W.P. No. 6548/2012 justified in injuncting the petitioner from causing any interference with the peaceful possession of the premises by respondent No. 1. Otherwise, the same could have caused irreparable injury to the respondent No. 1. In Deoraj v. State of Maharashtra and others (AIR 2004 SC 1975) it is held:
11. The Courts and Tribunals seized of the proceedings within their jurisdiction take a reasonable time in disposing of the same. This is on account of fair procedure requirement which involves delay intervening between the previous and the next procedural steps leading towards preparation of case for hearing. Then, the Courts are also over burdened and their hands are full. As the conclusion of hearing on merits is likely to take some time, the parties press for interim relief being granted in the interregnum.
An order of interim relief may or may not be a reasoned one but the factors of prima facie case, irreparable injury and balance of convenience do work at the back of the mind of the one who passes an order of interim nature. Ordinarily, the Court is inclined to maintain status quo as obtaining on the date of the commencement of the proceedings. However, there are a few cases which call for the Court's leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any Judge to test.
12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his 12 W.P. No. 6548/2012 favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.
23. Keeping in view the above proponement of law and the given facts of present case, the impugned order cannot be said to have suffered the vice of illegality or an error in exercise of jurisdiction.
24. In the result petition fails and is dismissed. Parties to bear their own costs.
(SANJAY YADAV) JUDGE Vivek Tripathi