1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 537 OF 1991 Shri Prakash Damodar Ranade, R/at 1643, Sadashiv Peth, Tilak Road, Pune – 2. ... Appellant (Ori. Defendant) v/s Smt.Mangala Waman Karandikar (since deceased through heirs) A. Ku.Manik Waman Karandikar B. Sau.Nilima Anil Deshmukh C. Ku. Vidya Waman Karandikar Sadashiv Peth, Pune – 30. ... Respondents (Ori. Plaintiffs) Mr.R.V.Pai for the appellant. Mr.P.K.Hushing for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 7TH NOVEMBER, 2009 ORAL JUDGMENT: 1. The second appeal challenges the judgment and decree in Regular Civil Suit No.764 of 1981 which has been confirmed in Civil Appeal No.979 of 1986. The suit filed by the plaintiff has been decreed and the defendant has been 2 directed to hand over possession of the suit shop to the plaintiff within three months from the date of the judgment i.e. from 30.8.1988. The defendant has also been directed to hand over possession of the furniture and other articles mentioned in the plaint. An inquiry under Order 20 Rule 12 of the Code of Civil Procedure for future mesne profits has been directed besides indicating that the plaintiff is entitled to an amount of Rs.880/- from the defendant as arrears. 2. Aggrieved by this order, the defendant preferred Civil Appeal No. 979 of 1988 in which the judgment and decree of the Trial Court has been confirmed. The time to hand over possession of the business in the shop along with the furniture was extended by two months from the date of the order of the Appellate Court i.e. from 29.7.1991. 3. The defendant has preferred the present second appeal which has been admitted. 4. The facts giving rise to the present appeal are briefly states as follows:- The suit property consists of shop premises on the ground floor of Municipal House No.1643, C.T.S. No.196/66, 3 Tilak Road, Pune. The plaintiff’s husband was running a stationery shop from these premises in the name and style of “Karandikar Bros.”. It appears that the plaintiff’s husband expired some time in the year 1962. Soon thereafter the plaintiff and the defendant entered into an agreement under which the suit premises were handed over to the defendant. The bone of contention between the parties is, whether the agreement executed between them on 7.2.1963 was a contract to run the existing business i. e. of a stationery shop or the agreement was for possession of the premises by way of a license. Undisputedly, the defendant took over the premises immediately after 7.2.1963 and started his own business in the name of style of “Neelkanth Prakashan”. There is no dispute that the defendant used to pay the plaintiff an amount of Rs.90/- per month after the agreement was executed. That amount continued to be paid till 31.10.1980. However, thereafter the amount has not been paid by the defendant. 5. The plaintiff therefore filed a suit before the Trial Court for recovery of the suit premises. The plaintiff claimed that the premises were handed over to the defendant together with the furniture therein to run her business in the name and style of “Karandikar Bros.” It was contended that since 4 the royalty of Rs.90/- per month for conducting the business had not been paid to her as per the agreed terms, she was entitled to possession of the premises. It was pleaded that the plaintiff had therefore issued a notice on 20.12.1980 claiming possession of the suit premises. It was further contended in the plaint that from 1.2.1981 the defendant was in illegal possession of the suit shop and was occupying it as a trespasser. 6. A written statement was filed by the defendant contending that the agreement between him and the plaintiff was not a contract for conducting a business but was a leave and license agreement. It was further contended that, in view of the amendment to the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “the Rent Act”), which came into force in 1973, he was a deemed tenant and, therefore, the plaintiff had no right over the suit premises. It was also pleaded that, immediately after the agreement of 7.2.1963 was executed, the defendant had commenced business in the suit shop in the name and style of “Neelkanth Prakashan” and that the plaintiff had never questioned the defendant about running the business from the shop in the aforesaid name. 5 7. During the pendency of the trial, the plaintiff expired and her legal representatives were brought on record. (The word “respondents” appearing hereinafter would therefore be referrable to “the plaintiff”). Evidence was led before the Trial Court and it has concluded, on perusing the agreement of 7.2.1963 that the plaintiff was entitled to recover the arrears of Rs.880/- for the use of the suit premises by the defendant. The Trial Court also held that the plaintiff was entitled to possession of the premises as well as the articles therein, mentioned in the plaint. The Trial Court further held that the plaintiff was entitled to mesne profits at the rate of Rs.200/- per month till the recovery of possession of the suit premises. The Trial Court negated the claim of the defendant that he was a licensee and that he had become a deemed tenant under Section 15A of the Rent Act after the amendment of 1973. Accordingly, the Trial Court has directed the defendant to hand over the possession of the premises. The appellate Court held that the suit premises were handed over to the defendant for running a business and that the defendant had not proved that he was a licensee in the premises. 8. The following substantial questions of law arise in the present appeal :- 6 (i) Whether both the Courts below failed to appreciate the scope of Sections 91 to 99 of the Indian Evidence Act by concluding that when there is a written document the Court cannot go beyond that document to determine the intention of the parties to that document ? (ii) Whether extrinsic evidence can be considered to interpret a document in order to make sense of that document since the language used in the document is “unmeaning” in reference to existing facts and the existing evidence on record ? (iii) Whether the Courts below have jurisdiction to try the suit if it is found that the agreement of 7.2.1963 was not a conducting agreement for running an existing business but was an agreement of leave and license ? 9. Mr.Pai, the learned advocate appearing for the appellant i. e. the defendant submits that both the Courts below have failed to consider the provisions of proviso 6 to Section 92 and the other sections in Chapter VI of the Indian Evidence Act (for short, “the Evidence Act”), while dealing 7 with the facts and circumstances in the present case. He submits that the exception carved out under Sections 92 to 99 to the provisions of Section Section 91 of the Evidence Act indicates that in order to ensure that a document is not rendered “unmeaning” in reference to the existing facts, extrinsic evidence can be considered to interpret that document. He submits that the burden of proving that the agreement of 7.2.1963 was one for conducting a running business and not a leave and license agreement was on the dominus litis i.e. the plaintiff and the plaintiff having failed to prove the same, the suit ought to have been dismissed. He then points out that there are certain incidents of a running business by relying on the several judgments, which I will presently advert to, which have not been established in the present case. According to the learned counsel, at the highest the case proved by the plaintiff is that the license was for conducting a business and not “a running business”. He urges that the very fact that Rs.90/- was paid each month by the defendant from the date of the agreement till 1980 as claimed by the plaintiff would indicate that this was not an amount towards the royalty for conducting the business. He then submits that, taking into consideration the other extrinsic evidence available, the Courts ought to have held that the agreement between the parties was a leave and 8 license agreement and that Rs.90/- had been fixed as the monthly compensation for the premises. 10. Mr.Hushing appearing for the respondents i.e. the plaintiffs submits that once an agreement between the parties is reduced to writing, the Court cannot go beyond that agreement and the intention of the parties must be deciphered from the agreement itself. He submits that the agreement clearly states that the possession of the premises were being handed over for running the business of a stationery shop and, therefore, the agreement cannot be interpreted as a leave and license agreement. He further submits that there was correspondence placed on record which had been exchanged between the parties which indicated that the defendant had sought an extension of the period stipulated in the agreement. The plaintiff had readily agreed and had extended the period for running the business. He points out that the evidence on record indicates that the plaintiff’s evidence has not been contradicted in the cross-examination nor has it been controverted by the defendant in his deposition. As regards the jurisdiction of the Court to decide the suit, Mr. Hushing submits that the suit had been filed on the basis that the defendant was a trespasser. He submits that such a suit would only lie before 9 the Civil Court and not the Small Causes Court under Section 28 of the Bombay Rent Act. He submits that only the pleadings in the plaint determine the jurisdiction of the Court. According to him, the pleadings disclose that the plaintiff was claiming possession of the suit premises against a trespasser and therefore the Civil Court had jurisdiction. He also points out that there was no challenge to the evidence of the plaintiff nor a suggestion put to her that the agreement was not for running an existing business. He then submits that the case is covered only by Section 91 of the Evidence Act and the other sections in Chapter VI have no bearing on the present case. He submits that it is only under Section 99 of the aforesaid Act that persons who are not parties to a document or their representative in interest can give evidence on the facts which tend to show a contemporaneous agreement bearing the terms of the document. He submits that, in the present case, there is no contemporaneous document nor are the parties before the Court not parties to the document. Mr.Hushing then submits that leave and license agreements and subletting were not permissible in law and therefore the instrument in question must be interpreted in consonance with the law. 11. The theory propounded by the author in Broom’s Legal 10 Maxims 10th Edition is that while interpreting a written instrument a liberal construction should be placed upon such an instrument so as to uphold it, if possible, in order to carry into effect the intention of the parties. The real intention of the parties must be effectuated. It is observed that, while construing a document, the construction placed on that document should be such that will preserve rather than destroy the intention. The interpretation must be reasonable and agreeable to common understanding. It must also be favourable and as near the minds and apparent intents of the parties as the rules of law will admit. While interpreting a document, therefore, one should not be cavil about the propriety of words when the intent of the parties is apparent, rather than destroying the intent by reason of the insufficiency of words. The golden rule of construction enunciated by the Courts is that - “Words are to be construed according to their natural meaning, unless such a construction would either render them senseless or would be opposed to the general scope and intent of the instrument, or unless there be some very cogent reason of convenience in favour of a different interpretation.” 12. These principles are crystallized in Chapter VI of the Indian Evidence Act. Section 91 clearly provides that a document if by law required to be reduced in writing must be 11 construed as it is, as no evidence shall be adduced as proving of the terms of such a contract, grant or other dispossession of the property. Section 92 excludes oral evidence relating to any document. However, certain exceptions have been laid down in the provisos to this section. Under proviso (6) to Section 92 any document may be proved which shows in what manner the language of a document is related to existing facts. Section 93 also excludes evidence to explain any ambiguity in a document. Section 94 again lays down that when language used in a document is plain in itself and applies accurately to existing facts, no evidence can be introduced nor ascertain what a party meant. Section 95 is an exception to this rule and reads thus: “95. Evidence as to document unmeaning in reference to existing facts. - When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.” Thus, it is clear that even when the document itself is clear and unambiguous, the parties are at liberty to lead evidence in order to establish that the contents of the documents are “unmeaning” or not workable. Extrinsic evidence can certainly be therefore considered to interpret the document if some sense is to be made out of an unambiguous document. 12 The same principles have been enunciated by the Courts in our country. In the case of Sohanlal Naraindas v/s Laxmidas Raghunath Gadit, reported in 1968 Vol.LXVIII B.L.R. 400, the Division Bench of this Court has observed that the intention of the parties is of paramount importance in deciding whether a particular transaction between them was a lease or a license. The Division Bench has succinctly drawn a distinction between a lease and a license and has observed thus - “We agree that the intention of the parties is of paramount importance in deciding whether a transaction between them was a lease or a license, but in our view, the said intention must relate to the elements which constitute a lease or a license respectively. Thus one of the requirements of a lease is that it must consist of a transfer of a right to enjoy immovable property. Such a transfer necessarily implies the grant of the right to exclusive possession of immovable property by the transferor to the transferee. It is, therefore, of primary importance in construing the terms of a transfer as to whether the parties intended that the transferee should get exclusive possession of the immovable property in question. The intention of the parties is also relevant in deciding whether the other conditions of the lease have been fulfilled. This is particularly so in deciding whether the transfer was for a valuable consideration. Even where exclusive possession of immovable property was transferred for a certain period, the transaction might amount to a license and not a lease where the dominant consideration was not the price which the transferee was to pay for the use and enjoyment of the property. A railway company may grant exclusive possession of a separate room at a railway at a railway station for conducting a tea stall for a specified period, and yet the transaction would amount to a license, as the dominant consideration of the railway company in such a case is the provision of amenities to railway passengers, and 13 not the price that may be paid by the transferee for the enjoyment of the immovable property. Exclusive possession of immovable property for a specified period may also be granted to a person out of sympathy and not in consideration of the price that might be paid by him and in such cases also the transfer may amount to a license and not a lease. Thus, in our view, the intention of the parties which is relevant in deciding whether a transaction is a lease or a license is their intention with regard to the elements which in law constitute a lease or a license and not their intention with regard to whether their transaction should be regarded as a lease or a license. It is only where the terms of a transaction are capable of being construed as the terms of a lease as well as those of a license that the assertion of the parties that they intend to create a lease or a license, as the case may be, would be a material consideration.” This judgment of the Bombay High Court was confirmed by the Supreme Court in the case of Sohanlal Naraindas v/s Laxmidas Raghunath Gadit, reported in 1971 Vol. LXXIV B.L.R. 144. The Apex Court has reiterated that the intention of the parties to an instrument must be gathered from the terms of the instrument examined in the light of surrounding circumstances. The Supreme court has observed thus - “Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject matter of the 14 agreement. If it is in fact intended to create an interest in the property it is a lease. If it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance.” Thus, it is apparent that it is not merely the transaction which must be scrutinized in order to ascertain the relationship between the owner and the occupier of the suit premises. 13. In the case of Delta International Ltd. v/s Shyam Sundar Ganeriwalla & anr., reported in 1999 (4) S.C.C. 545, the Supreme Court has observed that the test is to determine what was the intention of the parties and if camouflage is alleged or is apparent, the intention must be gathered from the terms of the agreement between the parties and if the terms are not clear, also from the surrounding circumstances. Similarly, in the case of Jainabi Yusuf Lambe & ors. v/s Jainabi Allimiya Wagale & ors., reported in A.I.R. 2004 Bombay 304, a learned Single Judge of this Court has held, in the facts and circumstances of that case, that the agreement executed between the parties was a license and not a lease. In the case of Rasiklal Kumbha Gala v/s Manilal Ravji, reported in 2005 (4) ALL M.R. 798, the words “licensee” and “conducting business” have been interpreted by a learned single Judge of 15 this Court. It has been held that, under the Bombay Rent Act, the definition of the word “licensee” specifically excludes a “conducting business”. 14. Thus, all the judgments cited at the bar indicate that, while interpreting a document emphasis must be placed on the words used in the document. Apart from this, the law as enunciated in the aforesaid judgments is that the parties shall be permitted to lead evidence in order to establish true intention of the parties in the light of surrounding circumstances. The Trial Court cannot shut out the liability of deciding whether a document is a lease or a license. Indubitably, extrinsic evidence can be considered while interpreting a document if it is “unmeaning” in reference to existing facts. 15. The debate therefore revolves around the question as to whether the agreement of 7th February, 1963 was a license to conduct a business in the premises or was a license to run the existing business which was being run by the respondents in the suit premises. Does the document create an interest in the premises or in the business ? 16. In the case of Rasiklal’s case (supra), a learned Single 16 Judge of this Court, while interpreting the terms “licensee” and “conducting business” has held that the Bombay Rent Act which defines the term “licensee” specifically excludes the expression “conducting business”. It is held that, if the premises in question are occupied on the foundation of a conducting business, then the occupant is not entitled to protection which is available under the Bombay Rent Act either as a licensee or a sub-tenant. It has further been held that the agreement in that case was unambiguous and the condition was well within the knowledge of the parties. Once the parties had accepted these terms and conditions, they could not at a later stage contend that the intention was to create a lease. In Sohanlal’s case (supra), as observed earlier, the Division Bench has held that certain criteria have to be met before a transfer can be considered to be a lease and not a license. Bearing in mind these observations, I will now advert to the controversial document in the present case which is the agreement of 7th February, 1963. That agreement has been exhibited before the Trial Court as Exh. 33. The first recital of this document describes the location of the suit premises being Survey No.196/66, Tilak Road (New House No.1643). Clause 1(b) speaks about the furniture available in the shop and the value of such furniture being Rs.300/-. In Clause 2, the appellant acknowledges the 17 fact that the respondent has been running a business in the suit premises in the name and style of “Karandikar Brothers” as stationers for 24 to 25 years. It is stated further that the appellant had approached the plaintiff to permit him to run the shop to which the plaintiff had agreed. In sub-clause (a) of Clause 2, the appellant has agreed to run the shop with the items of furniture mentioned earlier remaining therein. Sub-clause (b) stipulates that the plaintiff would pay the rent of the suit premises to the landlord while the appellant would pay her a sum of Rs.90/- per month as royalty. It was further agreed that in the event the appellant fell in arrears of payment of royalty for three months, the agreement would stand cancelled and the plaintiff would be entitled to the suit premises. Further it was agreed that the appellant was not liable for the business and recoveries prior to 1.2.1963 and that after 1.2.1963 till 31.1.1965 all responsibilities/liabilities in respect of the shop except for payment of the rent to the landlord would be those of the appellant. In the next clause, the appellant has agreed that he would run the shop in the name and style of “Karandikar Brothers” and that he would be responsible for purchase of stock, sale, employing persons for the shop, obtaining a license from the Municipal Corporation and all other necessary legal formalities. The appellant agreed that he 18 would be making payments in respect of the aforesaid terms and that the responsibility or liability for the same would not be that of the plaintiff. It has then been agreed in the next clause by the appellant that he would run the suit shop himself and would not transfer the same to any other person. It was further agreed that the shop and the furniture within had been handed over from 1.2.1963 till 31.1.1965 and that in the event the appellant wanted to continue in the suit shop, he could approach the plaintiff who would then decide whether to continue with the arrangement. 17. Mr. Pai submits that, on