Calcutta High Court
Trustees Of The Victoria Memorial Hall & ... vs Satya Chakraborty on 8 September, 2000
Equivalent citations: (2001)1CALLT128(HC)
JUDGMENT A. Talukdar, J.
1. This appeal has been preferred by the Trustees of the Victoria Memorial Hall against the judgment and/or order passed by Sri P.K. Biswas, Judge, 4th Bench of the City Civil Court at Calcutta in tittle Suit No. 752 of 1999. By the said order, the learned Judge disposed of the application for injunction filed by the plaintiff/respondent in a suit for declaration and injunction by directing the parties to maintain status quo as on 5th June, '99 till the disposal of the suit. The learned Judge however, observed that the said order of status quo shall not prevent the defendant/ appellant from taking any lawful step for securing eviction of the plaintiff/ respondent from the suit premises in accordance with law. Before we proceed further to consider the order under challenge in this appeal on merit, let us, state the brief facts leading to the filing of the suit and the application for injunction which are as follows :--
2. The plaintiff/respondent entered into an agreement initially with the defendants/appellants on 1st of December, 1987 for the purpose of running a business of confectionary, hetel and restaurant in the Hall of the Victoria Memorial Hall for five years against an annual payment of Rs. 38,100/- on the terms and conditions contained therein. A further agreement was again executed by and between the defendant No. 1 appellant No. 1 and the plaintiff/respondent for a further period of five years commencing from 1st of May, 1994 against the annual payment of Rs. 45,720/- in advance. The life of the agreement had expired. For extention of the period of agreement in question and also to permit the plaintiff/respondent to carry on his business, an application for extention was made before the Executive Committee of the Board of Trustees but the prayer for extention was rejected by the Executive Committee of the Board of Trustees which was chaired by the Governor of West Bengal. Since the plaintiff/respondent may face dispossession from the suit premises at the instance of the appellants, the instant suit has been filed for declaration and injunction. According to the plaintiff/respondent, although an agreement was made for five years, but it would be clear from the different clauses in the agreement that the plaintiff/respondent was inducted as a lessee in the suit premises.
3. According to the plaintiff/respondent, he being a lessee in the suit premises cannot be thrown out from the same without taking due course of law. Accrodingly, he filed the instant suit for declaration and injunction and also in the said suit filed an application for injunction praying for an order of injunction restraining the defedants/appellants from interfering with his peaceful possession of the suit premises till the disposal of the suit.
4. The application for injunction was contested by the defendants/ appellants by filing a writing objection in which the defendants/appellants had alleged that since the plaintiff/respondent after the expiry of the period of licencee agreement had become a trespasser, he was not entitled to an order of injunction against the true owner namely the defendants/appellants. It was further alleged by the defendants/appellants in their written objection that in a meeting of the committee of the defendant No. 1/appellant No. 1 which was chaired by the Governor of West Bengal, it was decided that no private caterer would be engaged to run the restaurant in the Victoria Memorial Hall Campus and accordingly, it was alleged by them that after the expiry of the period of licence, the plaintiff/respondent had no right or authority to run the restaurant inside the Victoria Memorial Hall Campus. It was therefore prayed by the defendants/appellants that after the expiry period of the licence and as the licence not being renewed, the plaintiff/respondent was not entitled to get any order of injunction and accordingly the application for injunction must be rejected. Initially, when the application for injunction was moved, the learned Judge, 4th Bench, City, Civil Court, at Calcutta passed an interim order of injunction restraining the defendants/appellants from giving any effect a letter dated 29th April, 1999 served on 1st June, 1999 by the defendants/appellants to the plaintiff/respondent which had shown that the prayer for extention made by the plaintiff/respondent was rejected. As noted herein earlier the learned trial Judge disposed of the application for injunction in the manner indicated earlier.
5. From the order impugned in this appeal it appears that the learned trial Judge while disposing of the application for injunction directed the parties to maintain status quo as regards possession of the suit premises till the disposal of the suit but had given liberty to defendants/appellants to proceed to recover the suit premises from the plaintiff/respondent by taking recourse to law. Feeling aggrieved by this order, the defendants/ appellants have come up in appeal.
6. On behalf of the defendants/appellants, Mr. Saktinath Mukherjee the learned senior counsel of this Court urged before us that the order of the trial Court cannot be sustained in law in view of the fact that the relationship of the defendants/appellants and the plaintiff/respondent was in the nature of licenser and licensee and in view of the admitted fact that the period of licence had already expired and the same was not renewed by the defendants/appellants, the question of granting an order of injunction in the facts stated above could not arise at all. Mr. Mukherjee further contended that the Trial Court was not justified in granting the order of status quo without considering whether the plaintiff/respondent was able to make out a prima facie case to go for trial as it would be evident from the materials on record that the license agreement has already expired and, therefore, on the basis of such licence agreement, the question of granting an order of injunction by the Court restraining the defendants/appellants from interfering with the possession of the plaintiff/respondent till the disposal of the suit could not arise at all. Mr. Mukherjee further argued that from the licensee agreement as well as from the application for injunction it would be evident that the defedants/appellants had the legal control over the plaintiff/respondent and, therefore, after expiry of the period of licence, no contractual obligation would subsist between the parties and accordingly, on the expiry of the period of licence, it must be held that the plaintiff/respondent could not make out any prima facie case to go for trial and accordingly, was not entitled to an order of injunction from the Court Mr. Saktinath Mukherjee, the learned senior counsel of this Court relied on a Division Bench decision of the Madras High Court reported in (1994) 2 LW 300 (Oriental Hotel Ltd. owing Taj Coromondal Hotel v. Mrs. Parameswari Devi) in order to satisfy us that the plaintiff/respondent was not entitled to an order of injunction when his licence agreement had already expired and prayer for renewal was rejected. Mr. Ahin Choudhury, the learned senior counsel, appearing for the defendants/appellants with Mr. Mukherjee had taken us through different clauses of the agreement in question particularly a clause which specifically indicates that the intention of the parties to the agreement in question was to induct the plaintiff/ respondent merely as a licensee and not as a lessee and after taking us through the different clauses, particularly the aforesaid clause of the agreement in question, argued that after the expiry of the period of the agreement in question, the granting of injunction on the basis of such licensee agreement which has already expired cannot arise at all. In support of this contention, Mr. Choudhury led by Mr. Mukherjee had cited a decision of the Supreme Court in the case of Delta International Ltd. v. Shyamsundar Ganarywala, .
7. The aforesaid submissions of the learned counsel for the defendants/ appellants were hotly contested by Mr. S.P. Roychoudhury, learned senior counsel who appeared before us on behalf of the plaintiff/respondent. Mr. Roychoudhury submitted that even if it was accepted for argument's sake that it was a licence and not a lease, then also the plaintiff/respondent cannot be thrown out without taking proper steps in due course of law as directed by the Trial Court. In this connection, strong reliance was also placed by Mr. Roychoudhury to two decisions of the Supreme Court one in the case of Mrs. M. N. Clubwala v. Fida Hussain, and the other in the case of Krishna Ram Mahale v. Shobha Venkat Rao, . Mr. Roychoudhury further contained that it must be held, after taking into consideration different clauses of the agreement in question that the same was in fact a lease agreement and not a licensee agreement, and, therefore, the plaintiff/ respondent was entitled to an order of injunction restraining the defendants/appellants from interfering with the possession in respect of the suit premises till the disposal of the suit. Mr. Roychoudhury has further drawn our attention to the orders of the trial Court and contended that since the learned trial Judge by the impugned judgment had granted leave to the defendants/appellants to take possession of the suit premises after taking recourse to law, that is to say, leave to evict the plaintiff/respondent from the suit premises has been granted by the trial Court, there is no need to interfere with such an order of the trial Court.
8. After giving our anxious considerations to the submissions of the learned counsel for the parties and after considering the judgment under appeal and other materials on record, we are of the view that the order of the learned trial Judge cannot be sustained in law.
9. In the case of Mahadeo Savlaram Shelke v. Pune Municipal Corpn. , the apex Court of our country laid down the principle to the effect that plaintiff seeking injunction must show a prima facie case, triable issue and balance of convenience for granting injunction. Again the Supreme Court in the case of Dalpat Kumar v. Prahlad Singh, made the following observations :--
"The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not suficient to grant injunction."
10. From the aforesaid observation of the Supreme Court, it is, therefore, clear that the plaintiff before obtaining an order of injunction must satisfy the Court that strong prima facie case has been made out by him to go for trial. Such being the position in law, let us now consider whether the plaintiff/respondent could make out any prima facie case to go for trial. In order to come to this finding we have to consider whether the agreement in question was in the nature of the licence or a lease. As noted herein earlier, Mr. Roychoudhury, appearing on behalf of the plaintiff/respondent sought to argue from the different clauses of the agreement in question that the same was in the nature of a lease. Whether an agreement in question is a lease or a licence can be gathered from the different clauses of the deed which will depict the intention of the parties. In the case of Delta International Ltd. v. Shyamsundar Ganaryawala, , the Supreme Court observed as follows :--
"The test to determine whether it is lease or licence is the real intention of the parties. Barring the circumstances where camouflage is alleged or is apparent the intention has to be gathered from the terms of the agreement entered into between the parties if the terms are not clear then from surrounding circumstances and the conduct of the parties the document should be construed in accordance with well-established principles and in case the camouflage or attempt to avoid the recourse of any legislation the mask is to be removed or the veil is to be lifted from the self-serving instrument and true intention gathered from the relevant circumstances."
11. To determine the question whether the agreement was a lease or licence and in view of the observations of the Supreme Court, let us now consider what was the real intention of the parties for entering into such an agreement. In this connection, we may straightaway refer to a clause in the agreement which is to the following effect :--
"Nothing contained in the agreement shall be construed to create a tenancy of occupancy right in favour of the licensee in respect of the said premises and the trustees may at any time after giving the notice as are mentioned in clauses 14 and 15 of the Agreement may hereof re- enter upon and retake and absolutely retain possession of the said premises without subjecting the Trustees to any action for trespass or otherwise whatsoever."
12. In clause 14 of the said agreement, it has been stipulated that there will be a licence fee at the rate of 45,720 per annum and the said licence shall continue for a period of five years commencing from 1st of May, 1994. It is also on record that notice was issued by the defendants/appellants on 29th April, 1999 turning down the request of the plaintiff/respondent for further extention of his licence to run the restaurant for another term and by the said notice, the plaintiff/respondent was directed to a settle all the bills and vacate the premises immediately. We have also examined the other clauses of the agreement in question and after examining the said clause in detail, we have no hesitation in our mind to held that the agreement in question was simplicitor a licensee agreement and not a lease agreement. As noted herein earlier, in order to determine whether an agreement is a lease or a licence one has to consider the real intention of the parties entering into such agreement. We have already held at least prima facie that the real intention between the parties to the agreement was to create a licence in favour of the plaintiff/respondent. There is another aspect of this matter. After considering the relevant clauses in the agreement in question, we are also of the view that the legal control and/ or possession of the suit premises had remained with the defendants/ appellants all throughout as it would be evident from clauses 1 to 12 and clause 15 onwards of the agreement and, therefore, the intention of the parties to enter into such an agreement was to crete a licence only in favour of the plaintiff/respondent. For the reasons aforesaid, the agreement in question was in the nature of a licensee agreement simplicitor and not a lease agreement The view that we have already expressed on the question of the lease or licence finds support in the case of Oriental Hotel Ltd. owning Taj Coromondal Hotel v. Mrs. Parameswari Devi, (1994) 2 LW 300.
13. Such being the position, we are of the view that the plaintiff/ respondent after the expiry of the period of licence has become a trespasser so far as his possession in the suit premises is concerned. Keeping this finding in our mind, let us now consider whether a trespasser can seek injunction against the true owner of the suit premises. In the case of Mahadeo Savlram Shelke v. Pune Municipal Corpn. , the Supreme Court at paragraph 9 has categorically made the following observations :--
"It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession."
14. Therefore, in paragraph 9 of the aforesaid decision of the Supreme Court, the Supreme Court has observed that since the possession of a trespasser is unlawful, he cannot seek any injunction against the true owner for evicting him. As noted herein earlier, the learned trial Judge while directing the parties to maintain status quo till the disposal of the suit had not considered at least prima facie that possession of the plaintiff/ respondent was in the nature of a trespasser after the expiry of the period of licence and, therefore, was not entitled to an order of injunction against the defendants/appellants. That is to say the learned trial Judge had not at all considered the prima facie case made out by the plaintiff/respondent to go for trial but only on the ground that the plaintiff/respondent cannot be thrown out without taking recourse to law, directed the parties to maintain status quo till the disposal of the suit. It is true that there are two different sets of principles which are to be borne in mind before granting or rejecting the prayer for injunction. The first principle is that when a person is in possession of a property even on the assumption that he has no right to remain in the property, he cannot be thrown out by the owner except by recourse to law. This principle, in our view, has been laid down in section 4 of the Specific Relief Act, 1963. Assuming a trespasser dispossessed from the property in question can seek restoration of possession under section 6 of the Specific Relief Act but the question remains to be gone into is whether such a trespasser can seek injunction against the true owner. This question as noted herein earlier, has been dealt with by the Supreme Court in the case of Mahadeo Savlaram Shelke v. Pune Municipal Corpn. . In that decision, as noted herein earlier, it was held by the Supreme Court that a plaintiff who was a trespasser in possession could not seek injunction against the true owner. In that decision, the Supreme Court also quoted its earlier decision in the case of Shib Kr. Chadda v. Municipal Corpn. of Delhi , wherein it was observed that injunction is discretionary and that "judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court." Considering the fact that an injunction is an equitable relief and such equitable relief cannot be granted before the Court is satisfied whether a plaintiff who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the true owner, we are unable to agree that such a trespasser can get an order of injunction. In the case of D.I.T.D.C. v. M/s. D.R. Mehra & Sons, AIR 1996 351. M. Jaganadhar Rao, C.J. (As His Lordship then was) sitting in a Division Bench of the Delhi High Court expressed the same view in paragraph 15 at page 355 of the aforesaid decision which runs as under :
"In our view injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity.
He must also come to Court with clean hands. When he does these things there will be no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the Court to protect his illegal possession."
15. Relying on the aforesaid principles laid down by Mr. Jagannadhar Rao, C.J. (as His Lordship then was) in the aforesaid Division Bench decision of the Delhi High Court with which we are in complete concurrence we hold that after the expiry of the period of the licence of the plaintiff/ respondent and after his prayer for extention of the period being rejected, it was not open to him to seek injunction against the defendants/appellants who are admittedly the true owners of the suit premises. Therefore, we are of the clear view that the plaintiff/respondent having become a rank trespasser after the licence had expired was not entitled to an order of injunction against the true owner when such occupation of the plaintiff/ respondent must be held to be in the nature of the trespasser in the suit premises. Accordingly, we are unable to sustain the order under appeal as we are of the view that the learned trial Judge had acted illegally in passing the order of status quo regarding possession of the suit premises till the disposal of the suit. That being the position, the application for injunction filed by the plaintiff/respondent shall stand rejected.
16. Before parting with this judgment we may consider the decisions cited by Mr. Roy Choudhury, appearing on behalf of the plaintiff/respondent. As noted herein earlier, Mr. Roychoudhury in order to satisfy this Court that the agreement in question was in fact a lease agreement, had drawn our attention to the decision of the Supreme Court in the case of Mrs. M. N. Clubwala v. Fida Hussain Sahi., . In view of our discussions made herein above and in view of the specific clause in the agreement in question and after considering the decision of the Supreme Court in the case of (supra), we are of the view that the intention of the parties was to create only a licence in favour of the plaintiff/respondent and not a lease. Another decision of the Supreme Court was also relied on by Mr. Roy Choudhury in the case of Krishna Ram Mahale v. Shobha Venkat Rao, . In our view, this decision can be distinguished on facts. In that decision, the Supreme Court held that a plaintiff was entitled to a decree for recovery of possession as she was unlawfully dispossessed and it could not be said that since the period of the licence had expired during the pendency of the suit, he was not entitled to an order of restoration. From a reading of this judgment of the Supreme Court, it is clear to us that the plaintiff was dispossessed from the suit property by the owner of the same when the period of licence was in force. In that background, the Supreme Court held that even during the pendency of the suit, when the period of licence had expired, the plaintiff was still entitled to recover on the basis of licensee agreement as at the time of the filling of the suit the licensee agreement was very much in existence that is to say before the expiry of the period of licence, the owner could not be permitted to dispossess the plaintiff from the suit premises without taking recourse to law. Such being the position, we do not find any reason to rely on this decision of the Supreme Court in view of our discussions made herein above and in view of the admitted fact that in that case before the Supreme Court the plaintiff who was a licensee was unlawfully dispossessed by the licensor before the expiry of the period of the licence. Such being the position, we do not think that those two decisions of the Supreme Court can have any application to the facts of the present case. So far as the decision of the Supreme Court in the case of M/s M. N. Clubwalla and Another v. Fida Hussain Sahi, as relied on by Mr. Roychoudhury is concerned, we find from a perusal of the said judgment that in that decision, the Supreme Court considered the distinction between the lease and licence and in doing so the Supreme Court observed that whether an agreement creates between the parties, relationship of landlord and tenant or merely that of licensor or licencee, decisive consideration is the intention of the parties and this intention has to be ascertained on a consideration of all the relevant clauses of the agreement. We have already considered relevant clauses of the agreement in question as discussed herein above and on such consideration of the relevant clauses of the agreement in question, we have already held at least prima facie that the intention of the parties to enter into such an agreement was to create licence in favour of the plaintiff/respondent and not a lease.
17. For the reasons aforesaid, the appeal is allowed. The impugned order and/or judgment is set aside and the application for injunction filed by the plaintiff/respondent in the trial Court stands rejected.
18. We however, make it clear that observations that have been made in this judgment shall not be taken by the trial Court as finding on the question discussed above and it would be open to the parties to satisfy the trial Court at the time of the disposal of the suit as to whether an agreement in question was in the nature of licence or lease. All questions are kept open to be decided by the trial Court.
However, we direct the trial Court to dispose of the suit as early as possible preferably within a period of six months from the date of communication of this order positively without granting any unnecessary adjournment to either of the parties.
There will be no order as to costs.
T. Chatterjee, J.
19. I agree.
Later :
20. Mr. Roy Chowdhury prays for stay of operation of the order which is refused.
21. Certified copy of the judgment, if applied for, be supplied expeditiously.
22. Appeal allowed