1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 154 OF 2009 Mr. Jose Agnelo Vivek Araujo, S/o late Dr. Remedios Araujo, Major in age, bachelor, represented herein by his power of attorney Mr. Raimundo Araujo, S/o late Dr. Remedios Araujo, major in age, bachelor, in service, R/o H.No.C-6, Govt. Flat, Altinho, Panaji Goa, by virtue of Power of Attorney dated 3.3.2005 executed before Notary Public Mr. Wilfred A. Boadita, at Panaji Goa. ... Petitioner V e r s u s M/s India Electron Exchange Ltd., Having registered Office at C-301, House of Lords, Opp. Hotel Marriott, Miramar, Panaji Goa. ... Respondent Mr. V. A. Lavande, Advocate for the Petitioner. Mr. Y. V. Nadkarni, Advocate for the Respondent. Coram :- A. H. JOSHI, J. Date :- 16 th SEPTEMBER, 2009. at* 2 JUDGMENT 1. Rule. Rule is made returnable forthwith and is heard by consent. 2. The plaintiff's suit for possession is pending. 3. Plaintiff wants that plaintiff's suit be decreed on admission. The claim for decree on admission is made by petitioner in the premises as narrated herein after. 4. The plaintiff has claimed that the defendant is occupying the suit premises on leave and licence basis. The contents of para 3 of the plaint pertaining to the averment of licence read as follows :- “3. The defendant began to occupy the said suit premises under an agreement of leave and licence. In fact after the terms and conditions had been agreed and settled and it was agreed that the agreement of leave and licence would commence from 1.11.2003, as the plaintiff had to go abroad before agreement of leave and licence could be signed by him. Therefore, the written agreement of leave and licence came to be executed subsequently on 15.10.2003 wherein the plaintiff's mother Mrs. Placida Araujo represented the plaintiff as the attorney. The said agreement for leave and licence was to commence from 1.11.2003 till 31.10.2006.” ( Quoted from plaint copy at page 27 of the paper book ) at* 3 5. This plea of licence contained in third paragraph of the plaint has been answered by the defendant with following averments :- “3. The contents of para 3 are false, incorrect and concocted, and therefore, denied. It is stated that, the defendant had been conferred the exclusive possession of the suit premises, not under any agreement of leave and licence, but under an agreement of lease. In this regard it is stated that, although, the agreement between the plaintiff and the defendant, dated 15.10.2003 was described as a Leave and Licence Agreement, it was never in dispute or doubt, that, the parties to the agreement intended to create a lease in respect of the suit premises, in favour of the defendant. It is a settled position of law, that, it is the operative intent of the parties and not the nomenclature of the document, which determines the character of the transaction between the parties. ................” ( Quoted from copy of written statement at page 42 of paper book of Writ Petition. Underlining is done for emphasis and for reference ) 6. Petitioner herein filed application ( Exhibit 41 ) contending that the contents of para 3 of the plaint have not been denied by the respondent, and therefore prayer (b) contained in the plaint needs to be decreed on admission. 7. Para 2 and 3 of the application at Exhibit 41 foregoing reads as follows :- “2. This fact has pleaded at para 3 of the plaint and the same has not been denied by the defendant in its written statement dated 25.10.2005 in the corresponding para. 3. The same thing, it has admitted in its written arguments filed on 29.2.2006 with respect to the application for temporary injunction filed by the defendant”. (Quoted from application at Exhibit 41 at page 17 of paper book of Writ Petition ) at* 4 8. The respondent opposed denying the contents replying as follows :- “2. With reference to contents of para 2 the same is wholly incorrect and untrue in as much as para 3 of the Written Statement categorically and in clear words denies the contents of para 3 of the plaint. Para 3 of the written statement under the caption of parawise reply reads as under : “ the contents of para 3 are false, incorrect and concocted and therefore denied. It is stated that, the defendant has been conferred the exclusive possession of the suit premises, not under any Agreement of Leave and Licence, but under an Agreement of lease.........” 3. With reference to contents of para 3 the same is not admitted in as much as the Applicant has misinterpreted the submission made and the context in which the said submission was made. ............................................................................................................. 3b). Defendant states that it is in lawful occupation of the suit premises and the same is in accordance with the said agreement, in as much as despite the alleged termination; which termination is bad in law and disputed by the defendant, the plaintiff has failed to refund the Security Deposit”. (Quoted from reply of the defendant at page 20 and 22 of paper book of Writ Petition ) 9. In the present petition, learned Advocate for the petitioner has placed reliance on para 3 of the written statement which according to the petitioner does not deny and statements contained in the paragraph no.19 of said written statement and contents of the written arguments which contain an admission as to tenure of licence. at* 5 10. Reliance is also placed by the learned Advocate for petitioner on the copy of written arguments placed on record at page 88 and 89. Relevant part thereof reads as follows :- “d. ................The defendant company had with an intention of carrying business operations in the suit premises had entered into the suit agreement for a period of 36 months. ................ f. It is respectfully submitted that the suit agreement will come to an end on 30.10.2006 and hardly few months are remaining for the same. Vacating the said company at this stage will involve serious hardships and inconvenience. It is therefore respectfully submitted that this Hon'ble Court may graciously be pleased to not pass any order directing the defendant company to vacating of the premises”. ( Quoted from written arguments of defendant at pages 88 and 89 of paper book of Writ Petition ) 11. Similar statement about tenure is seen in paragraph no.19 of written statement. 12. After hearing oral submissions, learned Trial Judge has passed impugned order rejecting the application for decree on admission. 13. Heard respective Advocates, who have emphasized on above described pleadings and the law. at* 6 14. Learned Advocate Mr. Lavande for the petitioner has placed reliance on following reported judgments :- (i) (2000) 7 Supreme Court Cases 120 in Uttam Singh Duggal and Co. Ltd. V/s United Bank of India and others. (ii) AIR 2004 Bombay 270 in Pransukhlal Mafatlal Hindu Swimming Boat Club Trust and others V/s Vasant Joshi and others. (iii) [1994(1) Civil LJ 378] in Lohia Properties (P) Ltd., Tinsukia, Dibrugarh Assam V/s Atmaram Kumar. 15. Whether the defendant has either admitted or failed to deny in the written statement a crucial pleading of fact contained in the plaint which has to be the foundation of decree prayed for is a question of fact to be ascertained from the pleadings. 16. This Court has quoted relevant paras of pleadings and reply thereto in the foregoing paras 4 and 5. It is seen from the pleadings and oral arguments advanced, that, underlined portion namely the said agreement for leave and licence was to commence from 1.11.2003 till 31.10.2006 is, according to the petitioner is not denied. at* 7 17. It is seen from the portion contained in the para 3 of the written statement which portion is again underlined with following interpretation are :- (i) The tenure of occupation as agreed is admitted. (ii) The fact of licence is disputed. (iii) What is specifically asserted by the defendant is that, in fact what was agreed is a lease and not a licence. (iv) Legality of termination is disputed. 18. It is also seen that sole admission contained in para 19 of the written statement and also of defendant in the written argument which are very strongly relied also as regards as tenure, and not as regards nature of occupation. 19. It is not shown by learned Advocate for the petitioner as to at which place the defendant has admitted the nature of occupation to be licence. 20. Whether this averment is denied has to be ascertained from the totality of the pleadings and what emerges is indicated in the foregoing paras. 21. Therefore, on facts it is very clear that the plaintiff's application is based on imagination. at* 8 22. In this background, the plaintiff's claim is not supported by admission expressly made or by implication i.e. due to failure to deny, as alleged. 23. The judgments cited by learned Advocate for the petitioner would help the case of the plaintiff where there is no ambiguity as to admission or evasive character of denial or failure to record clear denial. In the present case, denial is with due explanation and without ambiguity and it cannot be regarded a case of lack of denial at all. A denial has to be seen exfacie, and not to be out on microscopic scrutiny and then by mincing with the words. 24. The scheme of decree on admission is to end the suit when enquiry and hearing can be dispensed with due to clear admission of facts which are the foundation and claim made by plaintiff. 25. In the present case, claim is for possession. Foundation is nature of occupation and tenure. Claim is denied. The denial is vivid. Nature of occupation as pleaded by plaintiff is denied. Tenure is a complex issue, and therefore the defendant's admission about tenure would not amount to admission of a claim or fact crucial enough to be good ground for passing decree solely on said admission. at* 9 26. Therefore, petition has no merit and Rule is discharged. Parties are directed to bear own costs. A. H. JOSHI, J. at* at*