1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 185 OF 2003 1. Mr. Guy Vigney Athanasius D'Melo Married, land owner, resident of Chinchinim. 2. Mrs. Maria Esmeralda Veronica de Mello Wife of the plaintiff No. 1 resident of Chinchinim (Both regd. Addresses) …. Appellants. v/s. 1. The Government of Goa Daman and Diu represented by The Chief Secretary Secretariat, Panjim, Goa. 2. The Commissioner of Excise Government of Goa, Panaji. 3. Shri Alvaro Ferrao, Married, Electrician, resident of Chinchinim, Of Salcete Taluka. 4. Mrs. Alvaro Ferrao wife of the Defendant No.3. resident of Chinchinim of Salcete Taluka. 5. Union Of India Represented by the Secretary, Ministry of Home affairs, New Delhi. (All regd. addresses) …. Respondents. Shri C.A. Coutinho, Advocate for the Appellants. Shri Sudin Usgaonkar, Advocate for the Respondents no. 3 and 4. None present for other Respondents. 2 CORAM : U.V. BAKRE,J. RESERVED ON : 9th DECEMBER, 2011 PRONOUNCED ON : 16th DECEMBER, 2011 JUDGEMENT This appeal is directed against the Judgment, Order and Decree dated 05/03/2003 passed by the learned 3rd Additional District Judge, South Goa, at Margao in Civil Suit No. 10/1987/III. The Appellants are the Plaintiffs and they shall hereinafter be referred to as the Plaintiffs whereas the Respondents shall hereinafter be referred as the Defendants. 2. The suit was for mandatory injunction, permanent injunction and eviction with following prayers : (a) the defendants no. 3 and 4 be ordered to deliver the said business of bar cum restaurant presently known as ALFA BAR AND RESTAURANT and the fresh meats business, presently known as ALFA COLD STORAGE along with all the fittings and furniture mentioned in the schedule to the Agreement dated 21/05/1971; (b) the defendants no. 3 and 4 be ordered to pay Rs. 1000/- per month from the date of the filing of the suit up to the date of Decree and from the date of Decree up to the delivery of the business to the 3 plaintiffs; (c ) the defendants no. 3 and 4 be ordered to pay Rs.5000/- for the period from 22/08/1986 to 21/01/1987; (d) the defendants no. 3 and 4 be restrained by permanent injunction from doing any acts of nuisance and throwing dirt and dirty water and /or urine into the property situated at the backside of the shop and wherein the plaintiffs have their residential house; (e) the defendants no. 3 and 4 be restrained by permanent injunction from in any way doing any acts of damage either to the goodwill of the business or to the suit structure wherein the business is housed and also from doing any alteration or change to the suit structure; (f) the defendants no. 1 and 2 be restrained by permanent injunction from issuing any license for the sale of liquor into the suit premises, in favour of the defendants no. 3 and 4. 3. The case of the plaintiffs, in short, is as follows : The plaintiffs are owners in possession of the property known as “ GURGUNTI ” situated at Village Chinchinim, bearing survey no. 298/16. In the said property there are two structures: one consisting of commercial shops and other which is the residential house of the plaintiffs. 4 The structure consisting of commercial shops belonged to Fr. Crisologo de Melo who is the brother of the plaintiff no.1. Fr. Crisologo de Melo had leased out one shop comprising of 4 divisions to one Mr. Roberto Silva in the year 1964 or 1965 at the monthly rent of Rs. 45/- and the said Roberto Silva was running therein a bar and restaurant in the name of “Silva Bar and Restaurant”. By Deed of Sale dated 21/05/1971, the plaintiff no. 2 purchased the said business with furniture and other fixtures from said Roberto de Silva and conducted the business under the name of “Capitol Bar and Restaurant” till 28th July, 1973. On 28/07/1973, the plaintiff no.2 entered into an agreement with one Mr Benedito Gracias for conducting the business of said bar and restaurant for a period of 11 months on payment of compensation of Rs. 125/- per month. The liquor licence stood in the name of Roberto Silva who expired on 23/2/1977. By the same agreement, the plaintiff no. 2 also permitted said Mr. Benedito Gracias to start business of fresh provisions store. Mr. Benedito Gracias conducted the said business till November 1983 and thereafter handed over the said business back to the plaintiff no.2. The defendant no.3, who had been helping Mr. Benedito Gracias in running the said business, offered to run the business in the absence of plaintiff no.2 from Goa and also undertook to maintain day to day accounts till the plaintiff no.2 returns to Goa and undertook to run the business on behalf of the plaintiff no.2. The plaintiff 5 no. 2 returned to Goa in June, 1994 and demanded the accounts and also told the defendant no.3 that he should stop coming to the shop. The defendants no. 3 and 4 refused to do so and even changed the name of business to “Alfa Bar and Restaurant”. The defendants no. 3 and 4 dug a tube well in the kitchen without consent and also constructed a loft and started storing heavy material on the loft. The defendants also obtained additional electric connection and all the above acts were done without permission. The defendant no. 3 approached the excise department for fresh licence. The plaintiffs issued legal notice dated 13/08/1986 to the defendant no. 3, inter-alia, demanding delivery of the suit premises back to the plaintiffs. The defendants no. 3 and 4 refused. Hence the suit. 4. The defendants no.3 and 4 filed their written statement denying the case of the plaintiff. In short, their case is as under: Mr. Benedito Gracias is a seaman and it was his wife Mrs. Aida Gracias who was running the said business and she did it till September 1977. The said Aida Gracias entered into an agreement with the defendant no.3 and the said business was taken over by the defendant no. 3 and the furniture in the said shop which belonged to Mr. Benedito Gracias was also sold to the defendant no.3. Mrs. Aida Gracias sold the business to the defendant no. 3 with the consent of the plaintiffs as can be seen from the 6 letter dated 04/11/1977 written by the plaintiff no.1 to Mr. Benedito Gracias and his wife and also the letter dated 01/08/1982 written by the plaintiff no. 1 to the defendant no.3. The defendants no. 3 and 4 are the lessees of the suit premises and they have paid rent into Bank Account of the plaintiffs. 5. Based on the pleadings, as many as 22 issues were framed by the Trial Judge, however the main issue is issue no. 22 which reads as to whether the defendants no.3 and 4 prove that they are lessees of the suit premises and the said lease has not been terminated by the plaintiffs. The plaintiffs examined the plaintiff no. 1 as PW-1; one Ramesh Naik as PW-2, Smt Julia D'Silva, widow of Mr. Roberto D'Silva as PW-3 and one Francisco Mascarenhas as PW-4. The defendants NO. 3 and 4 examined the defendant no. 3 as DW-1. 6. The learned Trial Judge came to the conclusion that the defendants no. 3 and 4 were lessees in the respect of the suit premises and therefore he has no jurisdiction to decide the suit in view of Section 56 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (Rent Control Act, for short). The suit therefore came to be dismissed. The plaintiffs, being aggrieved by the impugned Judgment and 7 Decree, have approached this Court with this appeal. 7. Heard arguments. Learned Advocate Shri C.A. Coutinho, argued on behalf of the Plaintiffs whereas learned Advocate Shri Sudin Usgaonkar, argued on behalf of the Defendants no. 3 and 4. 8. I have gone through the entire material on record. 9. The main points that arise for determination are as under: (a) Whether the Plaintiffs have proved that Mr. Benedito Gracias ran the business till November 1983 and in the same month handed over the said business back to the plaintiff no.2 and at the request of the defendant no.3, the plaintiff no.2 allowed him to conduct the business in her absence from Goa and the defendant no.3 undertook to maintain day to day accounts and to run the business on behalf of plaintiff no.2 till she returns to Goa; and (b) Whether the defendants no.3 and 4 are lessees of the suit premises. 10. As far as the first point is concerned, the evidence on record 8 in clear terms establishes that the plaintiffs have made false averments with regard to the same. 11. Let us see as to how, when and by whom the defendant no.3 came to be inducted into the suit premises. Admittedly, the entry is not illegal. The entry of the defendant No. 3 in the suit premises is the foundation for the claim of the plaintiffs one one side and the defendants no. 3 and 4 on the other side. It is here, while laying the foundation itself, that the plaintiffs have made false averments in the pleadings thereby suppressing the truth. In paragraph 13 of the plaint, it is pleaded that the said business was run by Mr. Benedito Gracias till November, 1983, in which month he handed over the said business to the plaintiff no.2. In paragraph 14 of the Plaint, it is pleaded that the defendant no.3, who was helping said Mr. Gracias, requested the plaintiff no. 2 to allow him to conduct the business in her absence from Goa and the defendant no.3 undertook to maintain the day to day accounts and also undertook to run the business on behalf of plaintiff no.2 till she returns to Goa. In paragraph 15 of the plaint, it is pleaded that the plaintiff no.2 returned to Goa in June, 1984 and demanded accounts from the defendant no.3 and told him that he should no longer come to the shop. In paragraph no. 16, it is pleaded that defendant no.3 refused to hand over the business of the sale of fresh 9 meats and the business of Bar and Restaurant. First of all, the above pleadings are very weak in nature since it is not stated any where as to in what capacity the defendant no. 3 was allowed to conduct the business and maintain the accounts and as to what was the consideration for the same. 12. In his examination-in-chief at page no. 2, PW-1 who is the plaintiff no.1 has stated that Mr. Benedito Gracias ran the business till the end of the 1983 and wife of Mr. Benedito Gracias namely Mrs. Aida Gracias wrote a letter stating that she is facing problem in running the suit shop and that she would give the suit shop to the defendant no.3 in the same manner as she was running and on their behalf. PW1 has further stated that at that time the plaintiff no. 2 was in Bombay with children and he was abroad. The above deposition of PW-1, in his examination-in-chief, which is contrary to the pleadings, was recorded on 01/02/1993. But on 16/2/1998, when the evidence continued further, PW 1 changed the above version and stated all that is pleaded in paragraphs 13 to 16 of the plaint. Till the time PW-1 was shown the letter dated 04/11/1977 (Exhibit PW- 1/O), in his cross-examination, he maintained his above referred stand. But after he was shown said letter dated 04/11/1977, he admitted that it bears his signature and that in this letter he has expressed his satisfaction that the bar was given to the defendant no. 3 by Aida and Benedito and that in 10 case Ferraro runs the bar he is agreeable and told Aida to collect the rent of the bar and deposit the same in bank. PW-1 has also stated that he authorised defendant no.3, Alvaro Ferrao to keep stock of bar in his residential house, prior to 1983. PW-1 was shown the letter dated 01/08/1982 (Exhibit PW-1/P) and he identified his signature on the same and stated that as per this letter, defendant no.3, Alvaro Ferrao was supposed to vacate the residential house by 01/09/1982 and he authorised defendant no.3 to keep the bar stock inside the house. PW-1 has stated that prior to writing this letter exhibit PW-1/P, the defendant no.3 was running the bar with his stock. The above deposition of PW-1, in his cross- examination, reveals that the defendants no. 3 and 4 were not strangers to the plaintiffs and infact were even occupying their house. It is further revealed from the above that the business was handed over to the defendant no. 3 by Mr. Benedito Gracias and this was in the year 1977 and this fact was made known to the plaintiffs and on 4/11/1977, the plaintiff no. 1 consented for the same. 13. PW-1 in his cross-examination has also stated that right from the year 1982 till May, 1986 the amount has been regularly transferred from the account of the defendants no.3 and 4 to the account of his wife and Alfa stores mentioned in the entry is the business run by defendants no. 11 3 and 4. PW 1 has stated that prior to December, 1982 rents were collected from the defendants no. 3 and 4 by Mrs. Aida Gracias. The above clearly proves that the plaintiffs have falsely pleaded in the plaint that the business was run by Mr. Benedito Gracias till November, 1983. 14. It was argued by Mr. C. A. Coutinho, the learned Advocate for the plaintiffs that the plaintiffs did make some averments in paragraphs 13 to 16 of the plaint which they could not prove but the same does not make much difference. He argued that the plaintiffs might not have given the premises to the defendant no. 3, but still the main question is whether there is lease or licence. I do not agree with the contention that the evidence on record only reveals that the plaintiffs could not prove some of their pleadings and that this does not make much difference. In fact, the cross- examination of PW-1 clearly establishes that the plaintiffs have knowingly made false averments in the plaint in order to mislead the Court to believe that the defendant no. 3 was engaged by the plaintiffs only to conduct the business on behalf of the plaintiffs during the absence of the plaintiff no. 2, either as their agent or employee, and to maintain the accounts till she returned back to Goa. The plaintiff have approached the Court with unclean hands. 12 15. The point (a) is not at all proved by the plaintiffs. On account of making false averments in the plaint, regarding the foundation of the case i.e. about the entry of the defendants no. 3 and 4 in the suit premises, the case of the plaintiffs that the defendants no. 3 and 4 are trespassers has become very weak. 16. DW-1, the defendant no.3 has stated that he continued with the business of Bar and Restaurant in the suit premises pursuant to the agreement entered into with Mrs. Aida Gracias. This agreement dated 07/10/1977 is at Exhibit DW-1/A. The said agreement (Exhibit DW-1/A) clearly shows the intention of Mrs. Aida Gracias, who has signed the agreement for self and on behalf of her husband, to part away the exclusive possession of the suit premises to the defendant no.3. By this agreement at Exhibit DW-1/A, the occupier of the suit premises i.e. Mr. Benedito Gracias has agreed to sell the furniture existing in the suit premises to the defendant no.3. The agreement in its recital clause shows that the occupier desires to give on lease the premises occupied by him for the purpose of cold storage shop temporarily for a period of six months ending on 31st March, 1978 to the defendant no.3 on rental basis at the rate of Rs. 40/- per month. It is further stated in this agreement that the defendant no. 3 shall be permitted to occupy the premises for the purpose of business beyond the 13 stipulated date only if he is duly authorized by the proprietor. Thus, what is delivered to the defendant no. 3 by this agreement at Exhibit DW-1/A is the premises for business that is the suit premises and not merely the business. 17. It is seen from the evidence that subsequently on 4/11/1977, which is within one month from the date of the Agreement (Exhibit DW- 1/A), the plaintiff no.1 wrote to Mrs. Aida Gracias and Mr. Benedito Gracias a letter (Exhibit PW-1/O), in which he has expressed his satisfaction for having handed over the business of fresh meats to Mr. Alvaro Ferrao (Defendant No.3). He has specifically agreed for the same and has further written that he has no objection for the defendant no. 3 to run the business of the bar and that he would enter into an agreement with the defendant no.3 after coming to Goa. Thus, as requisitioned in the agreement (Exhibit DW-1/A), there was authorisation/written consent by the proprietor to the defendant no.3 to occupy the suit premises for the purpose of business of bar and cold storage beyond the stipulated date in the said agreement at Exhibit DW-1/A. 18. There is no dispute that if the defendant no. 3 is a lessee, then he is controlled by the provisions of the Rent Control Act. In terms of 14 section 22(2) (b) (i) of the Rent Control Act, inter-alia, a tenant can be evicted if he has, without written consent of the landlord, transferred his right under the lease or sublet the entire building or portion thereof. Thus, if the transfer takes place with the consent of the landlord, the tenant cannot be evicted. In the present case, the contents of the letter dated 04/11/1977 (Exhibit PW-1/O) read with the evidence of PW 1 in his cross-examination duly establish the written consent of the plaintiff No.1, for the act of handing over the suit premises along with business, by Mrs. Aida Gracias and Mr. Benedito Gracias to the defendant no.3. The letter dated 1/8/1982(Exhibit PW-1/P) written by the plaintiff no. 1 to the defendant no. 3 himself further shows that the plaintiffs had consented, since by this letter, the plaintiff no 1 has further authorised the defendant no. 3 to even keep the bar stock inside their house. 19. No doubt the said handing over of the suit premises had taken place on 07/10/1977, vide the agreement at Exhibit DW-1/A whereas the said written consent under Exhibit PW-1/O is dated 04/11/1977. The question is therefore whether prior consent of the landlord was required for such transfer. The provision of section 22(2)(b)(i) of the Rent Control Act does not specifically say that the consent should be prior. In this regard, the learned Advocate Mr. Sudin Usgaonkar, on behalf of the defendants no. 3 15 and 4, has relied upon “ Banarsi Dass vs. Faqir Chand and others” (AIR 1976 Punjab and Haryana 27), wherein it has been held that the expression “written consent” given in the lease-deed, Exhibit R-1, dated July 27, 1965, works both backwards and forwards, and there is no warrant for qualifying the expression “written consent” used in clause (ii) of sub- section (2) of Section 13 of the 1949 Act with the word “prior”. It has been held that so long as written consent for subletting is given by a landlord before filing of the petition for eviction whether before or after actual subletting, the case cannot fall within the mischief of section 13(2) (ii) (a) of the 1949 Act. Therefore, the written consent in the form of the letter, Exhibit PW-1/O, works in favour of the defendants no. 3 and 4. 20. The question now remain to be seen is whether Mr. Benedito Gracias and Mrs. Aida Gracias were lessees of the suit premises because as has been rightly argued by learned Advocate Shri. C.A. Coutinho , right of defendants no. 3 and 4 cannot be more than that of Mr. Benedito Gracias and Mrs. Aida Gracias . In other words, unless Mr. Benedito Gracias and his wife were tenants, they could not have transferred “tenancy” with the consent of their landlord. 21. Section 52 of the Indian Easements Act, 1882 defines license as 16 under: “ 52.- 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 immoveable 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 license.” Thus, a license is an authority to do an act, in relation to an immovable property, which would otherwise be a tress pass. The license does not pass interest and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property. 22. The case of the plaintiffs, as pleaded in the plaint, does not make out a case of license granted to the defendants no.3 and 4 but the same appears to be either of employment given to the defendants no. 3 and 4 or of agency, which case is otherwise not at all proved. 23. Learned Advocate Shri Coutinho, on behalf of the plaintiffs, pointed out that in the said lease and licence agreement (Exhibit PW-1/C), the expression “the owner” i.e. the plaintiff no. 2 has been stated to include her heirs, successors, administrators and executors and/or assigns, but the 17 expression “the conductor” i.e. Benedito Gracias is not stated to include the said persons. He therefore argued that the agreement was a personal agreement. He further argued that the said Benedito, in terms of clause 11 of the agreement, could not have parted away the possession of the said premises to any third party. He further pointed out that the conductor was supposed to pay the amount of Rs. 125/- per month which was by way of compensation and royalty. He also showed that the name “Capitol Bar and Restaurant” and its goodwill had to be maintained. The above, according to Shri Coutinho, are necessarily the conditions of a license and are not akin to lease. 24. However, there are various clauses in the said agreement (Exhibit PW-1/C) which are inconsistent with a license but akin to a lease. Lease has been defined in section 105 of the Transfer Of Property Act as under: “ 105.- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time,express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value.” 18 25. The agreement between plaintiff no.2 and Mr. Benedito Gracias which is at Exhibit PW-1/C is termed as “Lease and license agreement for conducting business”. This title gives an idea that the agreement is for lease of the premises and for license to conduct the business existing in the said premises. In clause 3 of the said agreement, it is stated that bar premises consist of 4 rooms and the conductor shall not change and alter the nature of business except that in one room adjacent to the main bar the conductor may as an additional business activity start fresh provisions stores subject to the conditions of this agreement. Clause 7 authorizes the conductor to make payments of electricity and water charges. As per clause 8, if the conductor intends to discontinue the business at any time during the period of agreement, he has to give notice in writing to the owner, 30 days in advance. Clause 9 says that the conductor shall not