Delhi High Court
Ashok Chaudhary vs Dr. (Mrs.) Inderjit Sandhu & Another on 24 May, 1998
Equivalent citations: 1998IVAD(DELHI)917, 1998(47)DRJ575
Author: M.S.A. Siddiqui
Bench: Arun Kumar, M.S.A. Siddiqui
JUDGMENT M.S.A. Siddiqui, J.
1. This appeal, directed against the judgment and decree dated 15.7.1997 of the Additional District Judge, Delhi, pertains to a contest between the respondent No.1/plaintiff seeking a decree for recovery of possession of the suit premises after termination of the licence, on the one hand and the appellant-defendant No.2 on the other wanting to continue as a tenant without being evicted therefrom.
2. According to the case set up by the plaintiff in the plaint, defendant No.1 was allowed to occupy the barsati floor of the property bearing No. F-9, South Extension, 11 Ring Road, New Delhi (hereinafter referred to as the suit premises) as a licensee as he was friend of her son, who is presently living abroad. Defendant No.2, being a friend of the defendant No.1, was a frequent visitor to her house. In the month of May, 1991, the defendant No.2 came to reside with the defendant No.1 for a week after obtaining oral permission from the plaintiff. In the meantime the defendant No.1 vacated the suit premises but the defendant No.2 avoided to vacate the same on the pretext or the other. However, in August, 1991 the plaintiff terminated his licence and asked him to vacate the suit premises. Instead of vacating suit premises, the defendant No.2 surreptitiously started making some unautho-rised additions and alterations in the suit premises, which evoked objec-
tions from the plaintiff. Incensed by this, the defendant No.1, claiming himself to be a tenant of the suit premises, issued the notice dated 2.7.92 calling upon the plaintiff to return the lease agreements alleged to have been executed by him in her favour; to get the lease deed registered for a period of three years; and, to issue rent receipts for the rent paid upto June, 1992. It was pleaded that there was no relationship of landlord and tenant between the plaintiff and the defendant No.2 and he did not pay even a single penny to the plaintiff by way of rent of the suit premises. After termination of the licence, the defendant No.1, who did not vacate the suit premises, remained in possession thereof as a trespasser. The plaintiff, therefore, claimed a sum of Rs. 7500/- by way of mesne profits.
3. Defendant No.1 has filed his written statement in support of the plaintiff's claim. The defendant No.2 resisted the suit and in the written statement, apart from raising other objections regarding under valuation of the claim, maintainability of the suit in the present form and jurisdiction of the civil court to entertain the suit, it was asserted that the defendant No.2 was inducted as a tenant vide lease agreement dated 28.2.1991 with stipulated rate of rent at Rs. 1100/- per month (Rs. 500/- for the suit premises and Rs. 600/- for fixtures and fittings). On the same day, the defendant No. 2 also paid a sum of Rs. 10,000/- to the plaintiff, which was to be adjusted towards rent of the suit premises, and the defendant No. 2 was also assured by the plaintiff for renewal of the lease for a further periodof 3 years. However, in the middle of February, 1992, the plaintiff obtained the lease agreement dated 28.2.91 from the defendant No.2 on the pretext of its renewal for a period of 3 years as agreed earlier and did not return the same to the defendant No.2. It was also pleaded that the defendant No.2 had paid rent to the plaintiff upto June, 1992.
4. The trial court after framing the issues and after recording the evidence came to the conclusion that the defendant No.2 was a licensee and he had failed to prove that he was a tenant of the suit premises. The trial court also held that it had jurisdiction to entertain the suit and directed the defendant No.2 to hand over vacant possession of the suit premises to the plaintiff and further ordered to pay mesne profits @ Rs. 1100/- per month from June 1991 till the date of delivery of possession. Aggrieved by this judgment and decree of the trial court, the defendant No.2 has come in appeal before this Court.
5. Learned counsel for the appellant has assailed the impugned judgment and decree on the following grounds:-
(a) On the basis of the evidence and in the facts and circumstances of the case the trial court has erred in holding that the defendant No.2 was in occupation of the suit premises as a licensee;
(b) If the court comes to the conclusion that the defendant No.2 was a tenant of the suit premises then the suit, having been filed under the general law in the court of the Additional District Judge, and not in the exclusive jurisdiction conferred upon the court under the Delhi Rent Control Act, is barred under Section 50 of the Act; and
(c) the plaintiff has under valued her claim for purposes of court fee and jurisdiction of the court to entertain the suit.
6. The main question involved in this appeal is whether the appellant was a licensee or a tenant. It is undisputed that the defendant No.1 (respondent No.2) was a friend of the plaintiff's son, who is presently living abroad; that prior to induction of the defendant No.2 in the suit premises, the defendant No.1 was in occupation of the suit premises and the defendant No.2, being a friend of the defendant No.1, used to visit the plaintiff's house. The relevant legal principles of distinction between lease and licence have been laid down by the Supreme Court in a number of decisions starting from the oft quoted decision in Associated Hotels of India Limited Vs. R.N. Kapoor . In Mrs. Clubwalla and Anr. Vs. Fida Hussain Saheb and Ors. , it was held by the Supreme COurt that:-
".........whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor or and licensee, the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions of the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties......."
7. In Qudrat Ullah Vs. Municipal Board, Bareilly , it was observed by Their Lordships that :-
"There is no simple litmus test to distinguish a lease as defined in S.105, Transfer of Property Act from a license as defined in S.52 Easements Act, but the character of th transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property, entitling the transferor to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a license is the legal result."
8. In Smt. Rajbir Kaur and another Vs. M/s. S. Chakosiri and Co. , it was observed that:-
"One of the twin principal tests by which a lease is distinguishable from the relationship created under a licence is the element of the right to exclusive possession involving the transfer of an interest in the property; the other being the 'rent' stipulated for the grant."
Their Lordships also observed that:-
"In the last analysis the question whether a transaction is a lease or a license "turns on the operative intention of the parties" and that there is no single, simple litmus test to distinguish one from the other."
9. At the outset, we must make it clear that there is no document on record to prove the true character of the alleged relationship between the plaintiff and the defendant No.2. Thus, the intention of the parties has to be gathered from the surrounding, antecedent and consequent circumstances. Plaintiff (PW 1) deposed that the defendant No.1, as a friend of her son, was permitted to occupy the suit premises as a licensee. On the contrary, the defendant No. (DW2) testified that the defendant No.1 was the plaintiff's tenant. Strangely enough, there is not even whisper of a suggestion in the cross-examination of the plaintiff (PW 1) that the defendant No.1 was her tenant. In this view of the matter, no reliance could be placed on the aforesaid bald statement of the defendant No.2. It has come in the evidence of the plaintiff (PW1) that the defendant No.2, being a friend of the defendant No.1, used to visit her house off and on. In the month of the May, 1991, the defendant No.1 expressed his intention to shift to some other place and he also equested her to allow the defendant No.2 to live in the suit premises for a week.
According to the plaintiff (PW1) believing in good faith and keeping in view the past acquaintance, she allowed the defendant No.2 to live in the suit premises for a week. In the meanwhile, the defendant No.1 left the suit premises and after one week, she asked the defendant No. 2 to vacate the suit premises but he avoided to vacate the same on some pretext or the other. However, in the month of August, 1991, she terminated the licence and demanded vacant possession of the suit premises from the defendant No. 2. Instead of vacating the suit premises, the defendant No.2 sent the notice dated 2.7.92 requiring the plaintiff(i) to return the lease agreements; (ii) to get the lease deed registered for 3 years; and, to issue rent receipts of the rent paid upto June, 1992.
10. Defendant No.2 (DW 2) testified that by the lease agreement dated 28.2.91, the suit premises were let out to him at a monthly rent of Rs. 1100/- (Rs. 500/- for the suit premises and Rs. 600/- for fixtures and fittings). It needs to be highlighted that it was pleaded in the written statement that on 28.2.91, the defendant No.2 had also paid Rs. 10,000/- to the plaintiff, which was to be adjusted towards rent to the suit premises, but he has stated nothing in his deposition about payment of the said sum to the plaintiff. This circumstance alone knocks the bottom out of the defendant's case with regard to the existence of the alleged tenancy. Defendant No.2 also wants us to believe that he had paid rent to the plain-tiff upto June, 1992 but no rent receipt was issued by the plaintiff. He further testified that in January, 1992, the plaintiff took back the lease agreement dated 28.2.1991 on the pretext of its renewal and did not return the same. In this way, the defendant No.2 has attempted to offer an explanation with regard to non-production of the lease agreement dated 28.2.1991. Plaintiff (PW 1) has denied the aforesaid facts. Ordinarily, any indenture of lease executed by a tenant in favour of his landlord remain with the landlord. In this case, how the defendant No.2 was allowed to retain the alleged lease agreement dated 28.2.91 in his possession is shrouded in mystery. It is also difficult to swallow as to how an unregistered lease agreement was required for renewal of the lease as alleged by the defendant No.2. It is also significant to note that it was pleaded in the written statement of the defendant No.2 that only one lease agreement i.e. lease agreement dated 28.2.91 was executed by the defendant No.1 in favour of the plaintiff, but the notice dated 2.7.92 sent by the plaintiff to the defendant No.2 shows that there were more than one lease agreement executed by the defendant No.2 in favour of the plaintiff. Reference may, in this connection, be made to para No. 3 of the said notice, which is as under :-
"that you the landlady asked my client to hand over all lease agreements in original, i.e. first and 2nd in order to go through it and getting last one registered for the period of 3 years but instead of registering it you kept all with yourself with some interior motive to harass my client which is something very unfair."
11. Surprisingly, the evidence of the defendant No.2 is conspicuous by the absence of the factum of existence of more than one lease agreement. On the contrary, he has stated in his evidence that only one lease agreement i.e. lease agreement dated 28.2.1991 was executed by him in favour of the plaintiff. It is difficult to reconcile the contradictory stands taken by the defendant No. 2 with regard to the existence of the alleged lease agreement dated 28.2.1991. Strangely enough, the defendant No.2 did not serve any notice upon the plaintiff to produce the said lease agreement before the trial court. He did not seek the leave of the trial court to adduce secondary evidence of the said lease agreement. Viewing the aforesaid circum-stances, the learned trial court was perfectly justified is disbelieving the evidence of the defendant No.2 with regard to the existence of the alleged tenancy.
12. Defendant No.2 (DW 2) further testified that he had paid rent to the plaintiff upto June, 1992 but no rent receipt was issued by the plaintiff. As noticed earlier, it was pleaded in the written statement that on 28.2.91, the defendant No.2 had paid Rs. 10,000/- to the plaintiff by way of advance rent. For reasons best known to the defendant No.2, this story had been abandoned by him in the witness box. Suffice it is to say that the learned trial court, who had the advantage of watching the demeanour of this witness, disbelieved him on this point and we are not inclined to take a different view.
13. In a last ditch attempt and indeed what appears to us an argument of desperation, learned counsel for the appellant contended that since exclusive possession of the suit premises was delivered to the defendant No. 2, this circumstance alone is sufficient to prove the relationship of landlord and tenant between the parties. It is ell-settled that the test of exclusive possession is not conclusive, though it is a very important indication in favour of tenancy. (B.M. Lall Vs. M/s Dunlop Rubber Co. (India) Ltd. and another and Associated Hotels of India Ltd. Vs. R.N. Kapoor ). It is significant to mention that the defendant No.2 (DW
2) has unequivocally admitted in his evidence that electricity and water supply was being controlled by the plaintiff and entrance to the suit premises was also under her control. While it is true that the defendant No.2 was entitled to the exclusive use of the suit premises from day to day it is clear that the legal possession and control of the suit premises must be deemed to have been with the plaintiff. The fact, therefore, that the defendant No.2 had exclusive use of the suit premises is not conclusive evidence of his being a lessee. On the contrary, evidence of the plaintiff (PW 1) clearly shows that the suit premises were given to the appellant out of sympathy and because of his friendship with the defendant No.1, who was a family friend of the appellant. What was given to the licensee (appellant) was the use of the suit premises which could not be said to have created any interest in the premises. Discovering the operative intent of the parties and other relevant facts and circumstances brought out in evidence, we are convinced that true character of the relationship between the parties was a licence and not a lease.
14. Plaintiff (PW 1) further testified that in the month of August, 1991, she had terminated the licence of the defendant No.2. In view of the licence of the defendant No.2 having been terminated, he is not entitled to use the suit premises. In our opinion, the learned trial court has rightly decreed the plaintiff's suit for the appellant's eviction from the suit premises and for payment of mesne profits for unauthorised use and occupation thereof.
15. This brings us to the question of valuation of the plaint for purposes of Court fee and jurisdiction of the trial court to entertain the suit. Prayer clause of the plaint is as under:-
"(a) pass a decree for recovery of Rs. 7500/- in favour of the plaintiff and against the defendants and more especially the defendant No.1;
(b) The Hon'ble Court may be pleased to pass a decree for mandatory injunction ordering and directing the defendants and more particularly the defendant No.2 to hand over the vacant and peaceful possession of the barsati floor as shown in the green colour in the map annexed to this plaint of premises No. F-9, South Extension-II, New Delhi.
(c) Further the Hon'ble Court may be pleased to pass a decree and order and direct the defendants to pay a sum of Rs. 2500/- per month as damages and charges for use and occupation of the said Barsati Floor of Premises No. F-9, South Extension-II, New Delhi during the pendency of the suit and till the time they hand over the vacant possession of the premises in question.
(d) Further the Hon'ble Court may be pleased to pass a decree for permanent prohibitory injunction restraining the defendants, their employees and agents from interfering with the possession and peaceful enjoyment of the remaining part of the entire property i.e. property No. F-9, 1 South Extension-II, New Delhi which is in possession of the plaintiff.
(e) Further the Hon'ble Court may be pleased to pass a decree for permanent prohibitory injunction restraining the defendants, their employees and agents from raising any construction, making any additions and alterations on the Barsati Floor of premises No. F-9, South Extension-II, New Delhi, and/or inducting any person or part with possession of the said property in favour of any person in any manner whatsoever.
(f) Costs of the suit be awarded in favour of the plaintiff and against the defendants.
(g) Pass/make such other appropriate orders and/or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
16. The plaintiff valued the suit both for the purpose of Court fee and jurisdiction at Rs. 7700/-. Rs. 7500/- being the value of mesne profits and Rs. 200/- being the value of mandatory injunction. The defendant No.2 disputed the valuation as unreasonable and arbitrary and contended that value of the suit would be the value of the suit premises which is more than 5 lacs and as such the suit has not been properly valued and the court fee paid was insufficient. Objection was also raised that the suit was beyond the pecuniary jurisdiction of the trial court. It appears that the trial court proceeded on the assumption that the suit is governed by Section 7(xi)(cc) and came to the conclusion that the suit ought to have been valued at Rs. 13,200/-, being the value of rent preceding 12 months @ Rs. 1100/- per month. Accordingly, the trial court directed the plaintiff to pay the deficient court fee on the aforesaid amount. We are unable to support the aforesaid view of the trial court, which, is wholly erroneous in view of the finding that the defendant No.2 was a licensee and not a tenant. The trial court appears to be blissfully ignorant about the provisions of Section 7 of the Court Fees Act. Section 7(xi) (cc) of the Court Fees Act deals with a case of recovery of an immovable property from a tenant but no provision has been made specifically in the said Act with regard to recovery of immovable property from a person whose licence in respect of that property has been revoked. In Purushottam Dass and Ors. Vs. Harnarain and Ors. , a Full Bench of this Court has held that the true criterion for determining the question of court fee in such cases is the substance of the relief claimed as disclosed by the plaint taken as a whole and not merely the form in which the relief claimed is expressed. Thus, the averments in the plaint alone have to be looked into for the purpose of determining the court fee payable in the plaint. It has to be borne in mind that it is not the case of the plaintiff that the defendant No. 2 was in joint possession of the suit premises along with the plaintiff. Reading the plaint as a whole, it becomes clear that the relief asked for the plaintiff squarely amounts to her having to get possession of the suit premises from the defendant No. 2, who is in possession thereof and the plaintiff cannot secure the same by merely adding a prayer for mandatory injunction of the kind asked for in the plaint. Thus, the relief of recovery of possession of the suit premises is not a surplusage but is a substantive relief claimed by the plaintiff. The relief for recovery of possession prayed for is not a consequential to the relief of the mandatory injunction prayed for and, therefore, Section 7(v)(e) of the Court Fees Act is attracted to the substantive relief claimed in the plaint.
17. In Sisir Kumar Vs. Susil Kumar , a Special Bench of the Calcutta High Court had on occasion to consider the question as to what is the proper valuation of a suit for ejectment of a licensee upon revocation or termination of his licence for purposes of court fee and jurisdiction; and, it was held that valuation of a suit for ejectment of a licensee, upon revocation or termination of his licence, either for purpose of court fee or for the purpose of jurisdiction shall be made under the provisions of Section 7(v) of the Court Fees Act. This question was also considered by a Full Bench of Patna High Court in Jagdish Chandra Vs. Basant Kumar and it was held that a suit for ejectment of a licensee, upon revocation or termination of his licence is clearly a suit for recovery of possession from a trespasser and it has to be valued under Section 7(v)(e) of the Court Fees Act. We are in respectful agreement of the aforesaid views taken by the High Courts of Calcutta and Patna.
18. The next question is what was the market value of the suit premises on the date of the suit. Plaintiff's evidence is silent about the market value of the suit premises. Defendant No. 2(DW 2) has estimated the market value of the suit premises as more than 15 lacs. On the contrary, it was pleaded in the written statement that market value of the suit premises was more than 5 lacs. However, the defendant No. 2 has examined P.S. Verma (DW4), who is an approved valuer, to prove the market value of the suit premises. He has submitted two reports (Ex. D-4/1) and (Ex D4/2) with regard to the valuation of the suit premises. In the report dated 23.3.1996 (Ex. D4/1), suit premises have been valued at Rs. 18,72,238/-, whereas in the report dated 18.11.1996 (Ex D4/2), value of the suit premises has estimated at Rs. 5,66,981/-. It is pertinent to note that P.S. Verma (DW4) has stated nothing in his evidence about the market value of the suit premises. It appears that he has been examined to prove his signatures on both the reports (Ex D-4/1) and (Ex.D4/2). The report (Ex D-4/1) is only a piece of corroborative evidence and in the absence of substantive evidence the same cannot be read in evidence to prove the market value of the suit premises. That apu, P.S. Verma (DW4) has also unequivocally admitted in his cross-examination that Ex D4/1 is not a complete report. In this view of the matter, no reliance can be placed upon the report (Ex D4/1).
19. Eliminating the report (Ex D4/1), there remains the report (ExD-4/2) on the record. Learned counsel for the respondent No.1 has submitted that the report (ExD4/2) may be accepted with regard to the valuation of the suit premises. In this report, valuation of the suit premises has been assessed at Rs. 5,66,981/-. It was also pleaded in the written statement of the defendant No. 2 that the market value of the suit premises was more than 5 lacs. However, in view of the admission of the learned counsel for the respondent No. 1, we hold that the market value of the suit premises on the date of the suit was Rs. 5,66,981/-. Thus, the value of the subject matter of the suit for purposes of court fee and jurisdiction would be Rs. 5,66,981/- and the court fee payable is ad valorem on the said amount.
20. At this juncture, the contention of the learned counsel for the appellant is that as on the valuation of the suit as ultimately determined by this Court, the Additional District Judge was not competent to entertain the suit, the decree and judgment passed by that court must be treated as a nullity. On the other hand it is contended by the learned counsel for the respondent No. 1 that the impugned judgment and decree cannot be treated as a nullity and the matter is to be dealt with under Section 11 of the Suits Valuation Act as no prejudice has been caused to the appellant within the meaning of that Section, in that his appeal has been heard by us. There can be no doubt that on the valuation of the suit as determined by us, the court of the Additional District Judge was 'coram non judice'. It is relevant to mention here that initially the suit was instituted on the original side of this Court. On 10.5.1993, the suit was transferred to the Court of the District Judge for its disposal as its valuation was below Rs. 5 lacs. However, if the correct valuation of the subject matter of the suit had been given by the plaintiff, the suit would have been tried on the original side by a single Judge of this Court; and, in that event the appellant would have had a right of one appeal before a Division Bench of this Court. We may point out that the complaint of the appellant is not that he had been deprived of a right of appeal before a Division Bench of this Court, which he has not been, but his grievance is that a change in the forum of trial of the suit is by itself a matter of prejudice for the purpose of Section 11 of the Suits Valuation Act. We see no force in the submission of the learned counsel for the appellant. In our opinion, the prejudice envisaged by Section 11 must be something other than the suit being heard in a different forum. One a plain reading of Section 11, it becomes clear that the prejudice on the merits contemplated by that Section must be directly attributable to over valuation or under valuation of the suit. In the instant case, under valuation of the suit has not prejudicially affected the disposal of the suit or the appeal on its merits. Moreover, we are satisfied that no prejudice has been caused to the appellant by his appeal having been heard by us and no injustice is shown to have resulted in the disposal of the suit by the learned Additional District Judge. Consequent-
ly, the contention of the appellant that the impugned decree and judgment should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.
21. In the result, the appeal fails and is dismissed with costs. Counsel's fee is quantified at Rs. 5000/-. The plaintiff/respondent No. 1 is directed to pay the deficient court fee on the valuation of the suit determined by us, within two months from today. It is, however, clarified that execution of the decree in suit shall not proceed until the deficient court fee is paid by the plaintiff/respondent No.1.