IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 SA.No. 672 of 1996(E) --------------------- AS.41/1994 of PRINCIPAL SUB COURT,NORTH PARAVUR OS.458/1990 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT(S)/APPELLANT/PLAINTIFF: -------------- (*)P.P.JOHN, S/O.PERU, CINEMA PROPRIETOR, SUNITHA THEATRE, PALLIKKARA, RESIDING AT PUTHENANGADY HOUSE, KIZHAKKAMBALAM KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. (DIED. LRS IMPLEADED) ADDL.APPELLANTS 2 TO 7: 2. THRESSIAMMA JOHN, AGED 64, PUTHANANGADY HOUSE, KIZHAKKAMBALAM P.O. 3. BENNY P. JOHN -DO- -DO- 4. BENEDICT JOHN, AGED 34, -DO- -DO- 5. BENCY NIXON, PUTHUSSERY HOUSE, ALUVA. 6. SUNITHA SUNIL, PULIYANTHURUTHY HOUSE, ALUVA. 7. VINEETHA SHAJI, CHERUMADATHIL HOUSE, MATTOOR. (*)ADDL. APPELLANTS 2 TO 7 ARE IMPLEADED AS LRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 3.3.2008 ON IA NO.2072/2004. BY ADV. SRI.P.KESAVAN NAIR SRI.K.G.CLEETUS RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. JANAKI AMMA, D/O.NARAYANI AMMA, THURUTHIVEETTIL, ERUMELIKKARA, KUNNATHUNADU TALUK, ERNAKULAM DIST. 2. AJITH KUMAR, S/O.JANAKI AMMA, -DO- -DO- SA NO.672/1996 2 3. THE KUNNATHUNADU PANCHAYAT, REP. BY EXECUTIVE OFFICER, KUNNATHUNADU PANCHAYAT OFFICE, KUNNATHUNADU PANCHAYAT P.O., KUMARAPURAM. ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R1 & R2 SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R1 & R2 SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R3 0 SRI.P.B.KRISHNAN FOR R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, ALONG WITH SA NO. 673 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.Nos.672 & 673 of 1996 -------------------------------------- Dated this the 17th day of November, 2009. JUDGMENT These Second Appeals arise from common judgment and decree in A.S.Nos.41 of 1994 and 42 of 1994 of Sub Court, North Paravur arising from O.S.Nos.458 of 1990 and 488 of 1990. Suits concerned right claimed by plaintiff in O.S.No.458 of 1990 to continue occupation of the property described therein on the strength of Ext.A1, agreement dated 17.7.1981. He also prayed for a direction to the third defendant therein, local Panchayat to renew the temporary license that had been issued to him under provisions of the Cinematograph Act. In O.S.No.488 of 1990 filed by defendant Nos. 1 and 2 in O.S.No.458 of 1990 they prayed for a mandatory injunction against the plaintiff in O.S.No.458 of 1990 to vacate the premises since according to them the period fixed by Ext.A1 has already expired and in obedience of the terms of Ext.A1 plaintiff in O.S.No.458 of 1990 was bound to vacate the premises on the expiry of that period. Learned Munsiff answered the issues in favour of defendant Nos.1 and 2 in O.S.No.458 of 1990 and directed the plaintiff in that suit to vacate the suit property. First appellate court confirmed the common judgment and decree and hence these Second Appeals. Substantial question of law framed for a decision in these appeals is whether plaintiff in O.S.No.458 of 1990 is entitled to the protection of Section 60(b) of the Easements Act (for short, “the Act”) and SA Nos.672 & 673/1996 2 whether courts below are justified in holding otherwise?. For the sake of convenience parties are referred to as plaintiff and defendants in O.S.No.458 of 1990. 2. Learned counsel appearing for plaintiff would contend that finding of the courts below that plaintiff is not entitled to the protection of Section 60(b) of the Act is not correct. Ext.A1 is the agreement dated 17.7.1981 which defendant Nos.1 and 2 in O.S.No.458 of 1990 claimed was executed between them and plaintiff therein. Defendant Nos.1 and 2 examined PWs 1 and 2 to prove execution of Ext.A1. They are attesting witnesses to Ext.A1 and supported defendant Nos.1 and 2. DW1 is also a witness in Ext.A1 but he did not support defendant Nos.1 and 2 in O.S.No.458 of 1990. He claimed that he had not seen plaintiff in that suit signing Ext.A1. But he stated that he signed Ext.A1 being convinced that it is signed by the plaintiff in O.S.No.458 of 1990. Courts below found in favour of execution of Ext.A1 and that being a finding of fact entered on evidence, no substantial question of law is involved requiring interference in Second Appeal. 3. Going by Ext.A1 it is an agreement of license whereby plaintiff in O.S.No.458 of 1990 was permitted to conduct a 'C' class cinema theater subject to the terms and conditions stated therein. The period provided in Ext.A1 is ten years. Though consideration mentioned in Ext.A1 is 'rent', which term is SA Nos.672 & 673/1996 3 wide enough to take in 'license fee' also, a reading of Ext.A1 and considering the object for which it was executed it leaves me in no doubt that document created only a relationship of licensor-licensee between plaintiff and defendant Nos.1 and 2 in O.S.No.458 of 1990. 4. Then the question is whether plaintiff is entitled to the protection of Section 60(b) of the Act. That Section provides that if acting on the license the licensee has put up permanent constructions the licence becomes irrevocable. Ext.A1 provides that on the expiry of period of ten years provided therein plaintiff would vacate the property and remove the structures he has put up. That amounts to a contract to the contrary which disentitled plaintiff to seek protection of Section 60(b) of the Act. Moreover when the period of Ext.A1, licence has expired by efflux of time, licensee cannot claim protection of Section 60(b) of the Act. I find support for these propositions in the decisions in Philomina v. Executive Officer (1987(2) KLT 89) and Ulahannan v. George (1988 (1) KLT 335). Hence plaintiff in O.S.No.458 of 1990 cannot claim protection of Section 60(b) of the Act. 5. The period of license has expired by efflux of time. It is open to the grantor of license to sue for mandatory injunction ofcourse, within a reasonable time after expiry of the period of license. Defendant Nos.1 and 2 (plaintiffs in O.S.No.488 of 1990) have, without waste of time filed the suit for mandatory injunction and that is in order. SA Nos.672 & 673/1996 4 6. Learned counsel for plaintiff in O.S.No.458 of 1990 would request nine months time to the plaintiff to vacate the property/premises. Request is not objected by learned counsel for defendant Nos.1 and 2 in O.S.No.458 of 1990 provided, plaintiff cleared the arrears of license fee (Rs.1,000/- per month) within a period of three months from today and continued to pay at the same rate for the period of nine months requested by learned counsel for plaintiff. Learned counsel for defendant No.3 in O.S.No.458 of 1990 would submit that since the period of license has expired, license cannot be renewed unless a no objection certificate issued by defendant Nos.1 and 2 in O.S.No.458 of 1990 is produced by the plaintiff therein. On that issue it is not necessary to make any direction in the way these appeals are being disposed of. I answer the substantial question of law in the above lines. Resultantly these Second Appeals fail and are accordingly dismissed. Plaintiff in O.S.No.458 of 1990 is granted time till 1.8.2010 to vacate the suit property as ordered by the courts below subject to the following conditions: i. Entire arrears payable by the plaintiff to defendant Nos.1 and 2 in O.S.No.458 of 1990 at the rate of Rs.1,000/- per month shall be deposited by him in the trial court within three months from today. ii. Plaintiff shall continue to deposit in that court for use and occupation of the premises at the rate of Rs.1,000/- per month till 1.8.2010. iii. Defendant Nos.1 and 2 in O.S.No.458 of 1990 is permitted to SA Nos.672 & 673/1996 5 withdraw the amount deposited. iv. Plaintiff shall file affidavit in the trial court within a month from this day undertaking to comply with condition Nos.1 and 2 and to vacate the property without putting forth any claim or objection by 1.8.2010. v. It is made clear that if any of the above three conditions is violated it will be open to defendant Nos.1 and 2 in O.S.No.458 of 1990 (plaintiffs in O.S.No.488 of 1990) to execute the decree in their favour. vi. Parties shall suffer their cost in these appeals. THOMAS P.JOSEPH, Judge. cks SA Nos.672 & 673/1996 6 Thomas P.Joseph, J. S.A.Nos.672 & 673 of 1996 JUDGMENT 17th November, 2009.