IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WP(C).No. 4586 of 2008(U) --------------------------------------- O.S.123/2007 OF THE ADDL.M.C.I., KOZHIKODE PETITIONER: -------------------- P.V.SATHYABHAMA ,D/O. NARAYANA PILLAI, RESIDING AT 5/2979,AREEKAL PARAMBA, THIRUTHIYAD, PUTHIYARA, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH SRI.A.T.THOMAN RESPONDENT: ---------------------- C.K.BIJOY, S/O. ASOKAN RESIDING AT SHAJI NIVAS, NADUVATTOM, BEYPORE,KOZHIKODE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 4586 OF 2008 --------------------- Dated this the 8th day of February, 2008 JUDGMENT This writ petition is preferred against the order of the District Judge, Kozhikode, in CMA 40/07 and CMA 41/07. The said orders are preferred against the order in IA 800/07 and IA 1140/07 in OS 123/07. 2. The respondent is the proprietor of M/s. Global Contract Cleaning concerned in conducting the work of car interior wash, floor maintenance and house keeping etc. It is the case of the respondent that it was entrusted to him by the former landlord of the said premises for a rent of Rs.2,500/- on the basis of an oral agreement. Since 2005 onwards the respondent is the proprietor of the concern in possession. Subsequently, the right of the owner has been purchased by the petitioner. It is averred that the petitioner had accepted the rent of the plaint schedule rooms and now is trying to evict the respondent by means of political influence and by influence of local gunda and therefore prayed for an injunction. 3. On the other hand, the petitioner would contend that it is not admitted that the respondent is the proprietor of M/s. Global contract WPC NO 4586/08 2 Cleaning. He was permitted to use the premises as a licensee, as per license agreement dated 22.8.05 and the term of agreement expired on 22.7.07. Therefore, the respondent has got no right to continue in the premises. It has got only three rooms and a bath room on the northern side, which was permitted to be used by the respondent. On the northern side, a separate gate for entry and exit was also provided and therefore the petitioner prayed for dismissal of the application. Thereafter an application IA 1140/07 was filed by the respondent for mandatory injunction to restore the status quo and possession of the respondent, as reported by the Commissioner on 23.1.07. The trial court on consideration of the materials granted absolute order of injunction in favour of the respondent and further directed the petitioner not to interfere with his possession till the disposal of the suit. Against that decision, the writ petitioner herein moved the above Civil Miscellaneous Appeals. Learned Additional District Judge, after considering the entire materials, held that the order of the court below requires modification and therefore directed the writ petitioner herein to restore the possession of plaint schedule three rooms and the respondent is permitted to be in possession of only three rooms and a bath room on the northern side of the building WPC NO 4586/08 3 along with the courtyard on the northern side till the disposal of the case. The court also directed disposal of the suit within a period of six months. 4. Now it is contended that the order passed by the appellate court is incorrect for the reason that the respondent was only in possession of the premises of three rooms and a bath room on the northern side on the ground of a licence arrangement, which was terminated in the year 2006. Therefore, he cannot claim any protection for entry thereafter. As the petitioner is in possession, the court below erred in granting the order of restoration as well as injunction in this case. A Commissioner was appointed in this case and he had inspected the property. At the time of first inspection, the Commissioner found the evidence of possession of the rooms by the plaintiff in the suit. The definite categoric contention of the petitioner is that the respondent is out of possession from July 2006. The court below also considered the documents Exts. A1 to A24 of which Exts. A1 and A2 are rent receipts and other documents relates to the payment of electricity charges. The Commissioner, who inspected the property, first, stated that he could not inspect the premises properly because of the obstruction caused by the WPC NO 4586/08 4 defendant and her husband. Even then he has reported that he has found a board in bold letters as Global Contract Cleaning on the front wall of the premises. A table, chair, shelf etc. with so many records were also found in the room. He also reported that he had seen two vaccum cleaners, a high power jet machine and 10 cans of chemical etc., used for cleaning purposes and two persons were also found working in the premises at that time. Again when the Commissioner inspected the property on 1.3.07 and it was found that on that day the rooms were neatly cleaned and the articles belonging to the plaintiff were not seen inside the room. So between 15.1.07 and 1.3.07 something had happened and there had been a change of possession. So the court below held that the case of the defendant that the plaintiff had vacated the premises in June 2006 is absolutely not correct. In the light of Exts. A1 to A22, which are the documents relating to the possession by the plaintiff, the court came to the conclusion that at least three rooms and a bath room on the northern side of the building was in possession of the plaintiff. Therefore the court modified the order of injunction and restricted it to those rooms including a permission to use the court yard and directed the court below to dispose of the matter. WPC NO 4586/08 5 5. The larger question is whether the transaction amounts to a lease or licence, is a matter that has to be decided in the suit after evidence. If it is a lease, one can be evicted under the due process of law and not by any forcible action. 6. So after considering the entire facts and circumstances of the case, I am satisfied that the learned judge had applied her mind properly to the facts and circumstances of the case and has passed the order. It does not require any interference. Therefore I dismiss the writ petition. But I make it clear that any of the observations made in the order of the Munsiff or the District Judge, or the order of this court shall not be a guiding factor at the stage of trial to determine the fate of the case. M.N.KRISHNAN, JUDGE vps WPC NO 4586/08 6