^ -i;iL!L"LA.a.nA^-?-*-^*-A-u-"-'<-<'A'~- "~t .-^^^'^^.ft-A^ . m TGS moH COURT or JUDICATURE AT BI1ASPUR *x33/< SECONDAPPEAL NO.^-"'^720(W 8 8ECOND APPEAL UNDER SEC?riON 100 OF inHB C»DEOF CIVDL PROCEDmtB ABP^LLANT/ fEFENDANTNQ.:'^s^ ^-WO::W^-"£%1"^ >^&w.^--^'1 1. Sri Nivas Kiimar, S/o B. Krlshnamm'ty, Aged about 38 years, R/o-M.I.0.2/210, Hudco, Bhflai, Tah. & Distt. Durg (CO) WERSDS RgSJPONDENTS/ yLMNTSFF B. Krishnamiirty, S/o B.A. Swaml, Aged about 72 years, ,j0^'^ R/o-M.La-2/210, Hudco, Shahid Koushal Nagar, Bhilai ^?^Nagar. DE 'ANT N0.2 Rrasent Address:- Utkal Lodge, Power House, Near R.S.S. Market, POWCF House Bhilai, Tah Distfc Dva-g (CG) State of Chhattisgarh, Through leamed Collector, Durg, Tah. & Distt. Durg (CO) >nd Appecd vahied at Rs. 'SQt Caurt Fee affvced ofRs 100f- or.03- 'o HIGH COURT OF CHHATTISGARH AT BILASPUR Sinflle Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.233 of 2008 B. Sri Nivas Kumar versus B. Krishnamurty and another ORDER ^ Postforo'T-3-2010 Sd/- Prashant Kumar Mishra Judge of- 0> -I® HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Jystice Prashant Kumar Mishra Appellant Respondents Second Appeal No.233 of 2008 B. Sri Nivas Kumar versus B. Krishnamurty and another Present: Smt. Fouzia Mirza, counsel for the appellant. Shri M.P.S. Bhatia, counsel for respondent No.1. Ms. Sangeeta Mishra, Panel Lawyerforthe State/respondent No.2. Second Appeal under Section 1 00 of the Code of Civil Procedure ORDER (Passed on O^- March, 2010) The instant second appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/defendant No.1, against whom the plaintiff/respondent No.1 had instituted a suit for permanent injunction and possession. The suit was dismissed by the trial Court, however, the first appellate Court has allowed the appeal filed by the plaintiff under Section 96 of the Code of Civil Procedure and while setting aside the judgment and decree passed by the trial Court, it has decreed the plaintiffs suit by the impugned judgment and decree dated 29-4-2008. At the time of filing of the suit on 14-8-2003, the plaintiff - father was 72 years of age, thus, at present, he is aged about 79 years. Defendant No.l/appellant is the son of the plaintiff/respondent No.1. The plaintiff/respondent No.1 shall hereinafter be referred as 'the father' and defendant No.l/appellant ,shall hereinafter be referred as 'the son'. ^.»'«ais^.. ^ao.- ^ ii ^sfs^. s %st \ 2. The father instituted the present suit against the son on the pleadings that he was working in the Bhilai Steel Plant and has purchased the suit house bearing No.MIG-2/210 situated at Hudco, Shahid Koushal Nagar, Bhilai Nagar, Tahsil and District Durg in the year 1988 from his salary income and, thus, the suit house is his self- acquired property. He was residing in the suit house, which is described in Schedute A with the plaint. He has two sons and one daughter and all are married. Defendant No.l/appellant is the second son of the ptaintiff/respondent No.1. According to the father, the son came to him on 13-10-1999 and requested the father to allow him to stay in the suit house, however, later on,he started quarreling and assaulted the father and expelled him from the suit house, as a result of which, the fatheris now residing at the present address. The son is pressurizing the father to hand over and transfer the suit house in his favour and harassing him for whieh a report was lodged by the father with the Kotwali Police Station. After lodging of the report, the son is abusing and threatening the father and has stopped his entry in the suit house saying that if he enters the house, he shall be killed. These facts have been stated in paragraphs 7 to 9 of the plaint. According to the father, he is a cardiac patient and has been rendered homeless by his son and that he is presently residing in a lodge and that in spite of all persuasions, wiser sense is not prevailing on the son and he has refused to hand over possession of the suit house to the father. 3. The son filed his written statement and stated that he has also contributed in purchasing the suit house and is residing in the suit house in the capacity of a son and that all adverse allegations made in ;.y-^l the plaint are denied. According to the son, the father did not take care in bringing him up and he was expelled from the house during his childhood. According to the son, since the first son, i.e., his elder brother was not taking care of the father, he was called by the father to reside with him and that he has spent substantial amount in the repairs of the suit house. It was further stated that the father has been instigated by the elder brother, i.e., the first son of the father and, therefore, the present suit has been filed to harass the son. It was further stated in the written statement that the suit has not been valued properly inasmuch as the suit should have been valued as per the market value of the properi:y for recovery of possession. 4. The trial Court decided the additional issue No.2 regarding valuation and payment of Court-fee against the plaintiff. While decidjng issue No,1, the trial Court found that the suit house belongs to the father but the suit was dismissed for improper valuation and non- payment of adequate Court-fee. 5. The first appeal filed by the father has been allowed by the impugned judgment and decree. On the question of valuation and payment of Court-fee, the first appellate Court, in paragraphs 17 and 18 of its judgment, has held that the possession of the son is that of a licensee and since the suit has been filed after issuing legal notice (Ex. P-2) for vacating the premises thereby terminating his licence, therefore, the suit for permanent injunction and handing over possession is properly valued under Section 7(iv)(d) of the Court-fees \Act, 1870. 6. Learned counsel for the appellant has argued that the first appellate Court has wrongly held that the present is a case of licence, as according to the learned counsel, no such plea has been raised in the plaint and, thus, the judgment and decree passed by the first appellate Court is based on no plea. According to the learned counsel, a plaintiff, issuing notice on the basis of licence, is requiredto plead and prove conditions of the licence and in the absence of any such pleading and proof, the suit could npthave been decreed. 7. I have considered the arguments advanced by learned counsel for the appellant as also the judgments relied on by her in D.H.Maniar and others vs. Waman Laxman Kudav, (1976) 4 SCC 118, P. Vijaya (Smt) and another vs. M. Santhanaraj, (2000) 9 SCC 287, Corporation of Calicut vs. K. Sreenivasan, (2002) 5 SCC 361 and Achintya Kumar Saha vs. /Vanee Printers and others, (2004) 12 SCC 368. Reliance on these cases of the Hon'ble Supreme Court is placed in support of the plea that — (i) the present is not a case of licence and (ii) there was no pleading and proofabout licence. 8. In Corporation of Calicut vs. K. Sreenivasan (supra), the Hon'ble Supreme Court, relying upon the celebrated case of Associated Hotels oflndia Ltd. vs. R.N.Kapoor, AIR 1959 SC 1262, has held that a licence has been defined under Section 52 of the Easements Act, 1882 and 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 ofthe owner thereof, it will be alicence. The legal position, therefore, continues to be with the owner ofthe property, but the licensee is permitted to make use of the premises for a "f», ''^s^' ^° particular purpose. But without permission, his occupation would be unlawful". 9. In the present case, paragraph 7 of the plaint makes a pleading that the son came to the father on 13-10-1999 and the father allowed him to take shelter in his house, however, the father was later on expelled. When the legal notice (Ex.P-2) is read in the context of plaint averment in paragraph 7, it is apparent that the plaintiff has pleaded a case of licence and its termination by the legal notice by asking the son to hand over possession of the suit house, therefore, the argument raised by learnedcounsel for the appellant that there is no pleading or proof about licence is not tenable. 10. The argument regarding improper valuation of the suit and non- payment of adequate Court-fee is mentioned only to be rejected. In Th. Milka Singh and others vs. Th. Diana and others, AIR 1964 J & K 99, it has been held by a Division Bench of the Jammu and Kashmir High Court that "a licensee is a licensee whetherthe licence is for occupation of the premises or for casual visits or for any other purpose. The status of a licensee cannot change or vary according to the purpose of the licence. The principle once a licensee always a licensee would apply to all kinds oflicenses". While holding the above in paragraph 7, the Division Bench, in paragraph 8 of the said judgment, has held that "it cannot be contended that since the usual mode ofproceeding is to bring a suit for possession the remedy by way of a mandatory injunction is barred in view of Section 56(1) (of the Specific Relief Act). It is obvious that if \ the licensee is treated to be a trespasser a suit for possession against ,'v<f /"^ i7 ^' '".<( a 1 ..^ wi'.4 him would be covered by Section 7(v) of the Court-fees Act instead of Section 7(iv)(d) and the licenser will have to pay ad valorem Court-fee on the subject matter of the property. Therefore, the remedy by way of a suit for possess/on is onerous and cannot be said to be equally efficacious within the meaning of Section 56(1) of the Specific Relief Act. If Section 56 is to be construed liberally then the provisions of Section 55 would be completely stultified and in every case of breach of an obligation the litigant will have to take recourse to remedy of a suit forpossession". Again after holding as above, the Division Bench of the Jammu and Kashmir High Court, in paragraph 9 of the report, has held that "Section 7(/v)(d) and not Section 7(v) ofthe Court-fees Act applies to a suit for an injunction simpliciter to vacate against a licensee, whose licence has been terminated". 11. The ratio laid down in Th. Milka Singh and others vs. Th. Diana and others (supra) fully applies in the facts of the present case. 12. In Th. Milka Singh and others vs. Th. Diana and others (supra), the Jammu and Kashmir High Court has referred to two English decisions in Minister of Health vs. Bellotti, (1944) 1 All England Law Reports 238 and Thompson vs. Park, (1944) 2 All England Law Reports 477. In these authorities, it has been held that a suit for injunction to evict a licensee has always been held to be maintainable. In the first case, an injunction was granted against a licensee, who was in possession afterthe termination ofthe licence. In \ this case, it was held that the licensee was entitled to a reasonable \notice so that he could collect his property and quit the premises. It was found that though the notice in that case did not give reasonable time yet, since by the institution of the suit, the licensee had sufficient time to vacate the premises, an injunction could be granted. In the second case, it was held that where the defendant was a licensee of the premises, as the plaintiff had revoked the licence, the defendant re- entered the premises as a trespasser and the plaintiff was, therefore, entitled to an injunction. 13. In the present case also, this Court has found that from the reading of the plaint as a whole and its paragraph 7 in particular together with the legal notice (Ex.P-2), it is a case of licence and its termination before filing of the suit by asking the licensee to vacate the premises. So far as the contention regarding absence of pleadings about the conditions and terms of the licence is concerned, suffice it would be to mention that in between a father and a son when the father had allowed the son to occupy the premises without payment of any fee or rent, it would be treated that there was no condition attached to the licence and it is a case of mere allowing use of the premises by the father in favour of the son and, thus, it is a case of simple licence without any condition, Therefore, there could have been no plea about the conditions and terms of the licence. 1 may again profitably quote few paragraphs from the English decision in Minister of Health vs. Bellotti (supra) on this argument of learned counsel for the appellant. Those paragraphs read thus: "With regard to the substantial point in the case, the question raised is one of some interest. As 1 have already said, the respondents were licensees for valuable consideration in respect of the premises which they occupied, and the licence extended to allow them to live in their flats, to have furniture of their own, which in fact they did, and to have their wives and families there, in addition to certain other amenit/es. It is, 1 think, important to remember the circumstances in which that licence came to be granted. This is not a case of a licence granted on commercial lines, nor is it a licence granted out of mere friendship or kindness. It was a licence granted by a department of state under a re/y high duty to persons who, through the exigencies of the war and no fault of their own, had by governmental action been removed from their homes and transported to this country. No decent-minded person could possibly suggest and, indeed, it is unthinkable that, in those circumstances, the Government should act otherwise than under a very strong sense of responsibility for the care and welfare of these individuals. The grant of this licence, or something like it, was one which was incumbent upon the Minister as the person entrusted with the duties of government in that behalf. I refer to that for this reason, because it appears to me that, where a licence is granted and a question arises as to the lawful method of terminating it, the circumstances in which the licence came to be granted are matters most relevant to consider, particularly when one is faced with the question : How, and in what circumstances and in what conditions can the licence be terminated? Where a licence is granted under a contract, it may \/ery well be that the contract will make express provision for those matters. Where it does, those express provisions with regard to termination of the licence and so forth must be observed. But what is to happen in a case where the contract is silent on those matters? 1 cannot take the view that there is some cast-iron principle of law which lays down for every type of contract, whatever the circumstances and whatever the purposes for which it was entered into, some 'Y^-u/e which is always to operate. In my opinion, the true rule \ ;s that the implications of the contract on those matters are /.'' • fl i- '% -.y' J <f J- to be determined in view of all the relevant circumstances of the case. 1 may cite here a very short passage from the judgment of the Privy Council in Canadian Pacific Ry. Co. v. R. (2). In thatjudgment, the following paragraph appears, at p. 432; Whether any and what restrictions exist on the power of a licensor to determine a revocable licence must, their Lordships think, depend upon the circumstances of each case. That is the only proposition of general application which 1 find it possible to extract from that authohty, to which 1 shall return later; and although the case, of course, is not binding upon this court, in my opinion, if 1 may say so with great respect, the law is there laid down with complete accuracy." » 14. Taking guidance from the above-quoted paragraphs of the decision in Minister of Health vs. Bellotti (supra) and having examined the facts and circumstances of the present case, this Court finds that the present case appears to be a case of licence granted by the father to the son out of kindness or sympathy and as such there was no condition attached to the licence and the father was, therefore, not obligated to make pleadings about the terms and conditions of the licence. 15. In view of what has been discussed above, no substantial question of law arises for determination in this second appeal, which fails and is hereby dismissed at the admission stage. Sd/- Prashant Kumar Mishra Judge Gopal