RSA No.1811 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1811 of 2009 (O&M) Date of decision 22.9.2011. Shri Gurdev Singh ...... Appellant. versus Shrimati Sunita Kumari ...... Respondent. Present : Mr. C.B.Goel, Advocate for the appellant. Mr. Sanjay Vij, Advocate for the respondent. K.C.PURI . J. Challenge in this appeal is the judgment and decree dated 15.4.2009 passed by Mrs.Sneh Prashar, learned Additional District Judge, Faridabad vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 13.2.2007 passed by Smt.Anita Dahiya, the then Additional Civil Judge (Senior Division), Faridabad was dismissed. 2. Briefly stated the case of the plaintiff is that she is owner of a shop bearing No.1 Market No.1 NIT, Faridabad and she rented out the groundfloor of the said shop to defendant. Defendant requested her to allow him for storing the bangles after raising temporary shed on the first floor of the rented shop. A mutual agreement dated 14.3.1994 was arrived, wherein defendant agreed to terminate the mutual agreement and to remove RSA No.1811 of 2009 2 the temporary construction on the request of plaintiff. No rent was agreed to be charged of this temporary shed raised with the help of asbestos and bricks. Defendant also agreed to use the shed with the help of bamboo staircase. It was also agreed that defendant shall vacate the shed within 20 days from the date of intimation sent by the plaintiff. Thereafter, plaintiff made requests to the defendant to vacate this temporary shed but of no use, hence the suit. 3. On put to notice defendant appeared and filed written statement and took up preliminary objection that first floor of the shop in dispute was constructed by plaintiff in the year 1986, which was in dilapidated condition. Plaintiff approached the defendant to renovate the same. Defendant was inducted as a tenant at the rate of Rs.250/- per month. Thereafter, defendant renovated the first floor of the shop after incurring the expenditure of Rs.25,000/-. Plaintiff inducted defendant as tenant in the year 1994 and since then defendant is paying the rent to the plaintiff but without receipt. There is a relationship of landlord and tenant between the parties regarding premises in question and suit for mandatory injunction is not maintainable. Plaintiff has concocted the alleged agreement dated 14.3.1994 after having created a false signature of the defendant thereupon. The tenancy of the defendant with respect to shop no.1 and shed in question on the first floor is protected under the Haryana Urban (Control of Rent and Eviction) Act, 1973. This Court has no jurisdiction to entertain the present suit. Suit is also not properly verified. 4. On merits, it is inter alia pleaded that no mutual agreement dated 14.3.1994 was signed and executed by defendant. Denying other RSA No.1811 of 2009 3 averments he prayed for dismissal of the suit. 5. Replication to the written statement was filed wherein all the allegations of the written statement were denied and reiterated those of the plaint. 6. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is owner of the shop in dispute as alleged ?OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for decree for mandatory injunction as prayed for in view of mutual agreement dated 14.3.1994 as alleged ? OPP 3. Whether the suit is not maintainable ?OPD 4. Whether the agreement dated 14.3.1994 is forged and fabricated as alleged ?OPD 5. Whether the civil court has no jurisdiction to entertain and try the present suit ?OPD 6. Whether the plaint has not been verified in accordance with law ?OPD 7. Relief. 7. The parties have led their respective evidence on the aforesaid issues. Learned trial Court after appraisal of the evidence decreed the suit of the plaintiff vide judgment and decree dated 13.2.2007. The defendant was directed to hand over the vacant possession of the area as shown in the red colour in the site plan Ex.PW-4/1 bearing Mark ABCD within a period of two months from the date of passing this order failing which, the plaintiff was held entitled to take the possession in accordance with law. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 13.2.2007, defendant filed first appeal before the First Appellate RSA No.1811 of 2009 4 Court. The First Appellate Court after hearing the learned counsel for the parties dismissed the appeal of the defendant vide judgment and decree dated 15.4.2009. 9. Still feeling dissatisfied with the judgment and decree dated 13.2.2007 passed by the trial Court and judgment and decree dated 15.4.2009 passed by the First Appellate Court, the defendant/appellant has preferred the present regular second appeal. 10. The appellant in paragraph No.14 of the grounds of appeal has mentioned that following substantial questions of law have arisen for decision in the present regular second appeal :- i) Whether an instrument when exclusive possession is given in respect of the premises is a case of lease ; ii) Whether in construing a document the real intention of the parties is necessary to find out the nature of transaction and mere cosmetic use of the impression, licence agreement cannot over shadow the tenancy rights of the parties; iii) Whether the document P-1 in the facts and circumstances of the present case was not proved according to law ; iv) Whether assuming though not admitting it was a case of licence, whether the said licence could be terminated in the facts of the present case ; v) Whether even if it is held that it was a case of licence then it was irrevocable in nature ; vi) Whether the Civil Court has no jurisdiction to entertain and try the suit ; vii) Whether in the wake of grant of actual physical possession of the premises in question, a mere suit for mandatory injunction was not competent. 11. The learned counsel for the appellant has submitted that the appellant had taken the shop on rent and that fact has not been disputed by RSA No.1811 of 2009 5 the landlord. The landlord has filed so many eviction petitions and has failed to get the eviction order in respect of the shop. 12. It is further contended that dispute involved in the present lis is in respect of the first floor of the shop. The reliance of the plaintiff now respondent is upon the document Ex.P-1. Both the Courts below have not tried to find out the real intention of the parties in executing the same. The appellant was allowed to raise construction over the first floor and for that purpose he was allowed to raise construction by his own source. The appel1ant spent Rs.25,000/-. The said amount is sufficient to cover the rent of the first floor. So, the real intention of the parties was to execute the rent note and not licence deed. It is further contended that plaintiff has made alteration and additions in the agreement Ex.P-1, so, that document cannot be given effect. Even if it is presumed that appellant is a licensee in that case also, the same cannot be terminated in the manner in which finding has been given by both the Courts below. The said license is irrevocable. Civil Court has no jurisdiction to entertain and try the suit. Otherwise, mere suit for mandatory injunction is not maintainable. The last limb of arguments advanced by the learned counsel for the appellant is that as per agreement Ex.P-1, other tenants are signatories to it. The said licensee cannot be terminated against other tenant and on that account also, the appeal is liable to be accepted. 13. Learned counsel for the plaintiff/respondent on the other hand supported the judgments and decrees passed by both the Courts below. 14. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of RSA No.1811 of 2009 6 the case. 15. There is concurrent finding of fact recorded by both the Courts below that appellant is simply a licensee over the first floor and the landlord had allowed him to keep the bangles after constructing a temporary shed. Both the Courts below have rightly held that said license stands terminated and the appellant is bound to hand over the possession. In the substantial questions of law, no point has been raised that other tenants are a necessary party but during the course of arguments, the said controversy has been raised. From the bare perusal of Ex.P-1, it is revealed that other tenants are signatories only on account of the fact that temporary construction allowed to be raised by the plaintiff is on their roof. It is nobody's case that any of the other tenants is in possession of the disputed premises and as such the above said arguments are meritless. There is nothing on the file that there is alteration or additions in the agreement Ex.P-1. Plaintiff has simply allowed the appellant to construct temporary shed for storing bangles and it was not the intention of the parties to create tenancy. The limit of expenditure on construction itself has been mentioned in the agreement Ex.P-1. So, both the Courts below have rightly held that according to agreement Ex.P-1, license has been created and as such the suit has been rightly decreed by both the Courts below. 16. So, all the substantial questions raised above by the learned counsel for the appellant stand determined against the appellant and consequently the regular second appeal is without any merit and the same stands dismissed. RSA No.1811 of 2009 7 17. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 22, 2011 sv