RSA No.596 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.596 of 2010 (O&M) Date of Decision: 14.5.2010 Sohan Lal ..Appellant. Vs. Surinder Kumar Sanger ..Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Harsh Aggarwal, Advocate for the appellant. RAKESH KUMAR JAIN, J. The defendant is in second appeal against the judgment and decree of the first Appellate Court dated 30.9.2009 whereby judgment and decree of the trial court dated 11.8.2006 has been reversed. Pleaded case of the plaintiff is that he is owner of the shop in dispute, which is in possession of the defendant as a licensee on payment of Rs.350/- per month as compensation on the basis of a writing dated 3.2.1999 in which it was agreed that license period would start from 15.3.1999 but the actual and legal control of the shop would remain with the plaintiff and defendant would be entitled to use the shop as licensee who had agreed to pay Rs.350/- per month as compensation fee for user of the shop and further agreed not to hand over the right of user of shop to anybody else and licensor would have a right to revoke the licence after expiry of period of licence. Since the defendant stopped payment of RSA No.596 of 2010 (O&M) -2- compensation for user of the shop from 21.1.2000 the plaintiff revoked the licence with the issuance of notice and claimed mandatory injunction for handing over the vacant possession and also to pay Rs.700/- as compensation. The defendant pleaded that there is a relationship of landlord and tenant between the parties, therefore, Civil Court has no jurisdiction but ownership of the plaintiff on the shop of the plaintiff was admitted. It was alleged that initially Chiranji Lal inducted the defendant as tenant on monthly rent of Rs.85/- and after his death his estate was inherited by Kewal Krishan Sangar who became his landlord and with a mutual settlement with him rent was increased to Rs.240/-. After the death of Kewal Krishan, plaintiff has become landlord, who has increased the rate of rent Rs.350/- per month. It was alleged that licence deed dated 15.3.1999 is a sham and bogus document which was never acted upon. The defendant had offered the rent from 21.1.2000 till the filing of the written statement but the plaintiff has illegally refused to accept the same but the defendant is still ready and willing to pay the rent. On the pleadings of the parties, following issues were framed: (i) Whether the defendant is a licensee in the shop in dispute? OPP. (ii) Whether the suit is not maintainable in the present form? OPD. (iii) Whether the suit is barred by jurisdiction? OPD. (iv) Whether the site plan is incorrect produced by the plaintiff ? OPD. (v) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. (vi) Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD. RSA No.596 of 2010 (O&M) -3- (vii) Whether plaintiff is guilty of intentionally suppression of material facts? OPD. (viii) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP. (ix) Whether the plaintiff is entitled to the recovery of Rs.700/- as compensation? OPP. (x) Relief. Both the parties led their respective oral as well as documentary evidence. The trial Court dismissed the suit. However, the first Appellate Court reversed the findings and held that relationship between the plaintiff and defendant was not of a landlord and tenant but licensor and licensee. The learned first Appellate Court recorded the following findings in reversing the judgment of the trial Court. “The learned Lower Court has dismissed the suit of the plaintiff by holding that the licence deed Ex.P1 is a sham and bogus document and the plaintiff has also concealed the material facts regarding the possession of the defendant since 1975. It is correct that the plaintiff has mentioned in the plaint that the defendant have taken the shop in dispute as licencee w.e.f. 15.3.1999 vide licence deed dated 3.2.99. It was because of the fact that the licence deed was executed by the defendant on 3.2.99 and it is mentioned in the licence deed Ex.P1 that the licence would start from 15.3.99. Plaintiff have not denied in his cross-examination that the defendant is in possession of the suit property for the last about 30 years. It is contended by the learned counsel for the plaintiff that the defendant used to execute the licence deed from time to time for the shop in dispute and used to renew the licence deed by executing fresh licence deed from time to time. This fact is rather proved from the previous licence deeds placed on the file upon the direction of the court when it was so prayed by the learned counsel for RSA No.596 of 2010 (O&M) -4- the defendant in the cross-examination of the plaintiff. The previous licence deeds are dated 15.6.1982 and 5.2.1996. These licence deeds rather vindicate the contention of the plaintiff that the defendant used to execute the licence deed from time to time. It rather clearly shows the intention of the parties that the defendant was inducted as licencee in the shop in dispute because if the intention of the parties was not to act upon the licence deed and the same was executed only as a covering document then the defendant would not have renewed the licence by executing the fresh licence deed from time to time. As such, plaintiff has not concealed the material facts in this case and has mentioned the facts about last licence deed in the plaint. In the replication, the plaintiff has denied the assertion of the defendant that he is a tenant in the suit property. As such, the observation of the learned lower Court that the licence deed Ex.P1 was only a sham and bogus document and was not to be acted upon, is not based on sound footing. Otherwise, a licencee remains a licencee even after the termination of the licence. It was observed in case titled Sant Lal Jain Vs. Avtar Singh, 1985 PAP page 326 (SC), in which Hon'ble Supreme Court of India has observed that once a licencee remains always a licencee and the possession of licencee after termination of licencee does not become that of a trespasser. The defendant has not produced any receipt on the file showing that he has paid the rent, but even if it is mentioned in the receipt regarding the payment of rent then the status of defendant would not change from licencee to tenant. In case titled Bimal Chand versus D.C.M. Ltd. 1997(3) Recent Civil Reports, page 293, the premises was given on licence and licencee made payment and the payment was termed as rent and it was observed by the Hon'ble High Court that it will not make a person tenant. In case titled Vayallakath Muhammedkutty Vs. Illikkal Moosakutty, 1997(3), Haryana Rent Reporter, RSA No.596 of 2010 (O&M) -5- page 47, it was observed by the Hon'ble Supreme Court of India that mere fact that exclusive possession was given to plaintiff, does not prove that a lease was created in favour of plaintiff and intention of the parties is the main factor to determine the nature of the document and in the case in hand also, defendant had been executing licence deed from time to time which clearly shows the intention of the parties that the status of the defendant in the shop in dispute was that of a licencee and not as a tenant because if the intention of the parties was not to act upon the document, then the defendant would not have executed the licence deed from time to time after the expiry of previous licence deed. In case titled Delta International Ltd. Versus Shyam Sunder Ganeriwala 1999 (1) Rent Control Reporter, page 447, in a case to determine whether the document is a lease or licence, it was observed by the Hon'ble Supreme Court that distinguishing line between lease and licence is absolutely thin and in such cases, terms of the document are to be read as they are and it would be unreasonable to draw inference that parties intended to create relationship of landlord and tenant despite express contrary terms in the deed which are binding between the parties. In the case in hand also, the defendant executed the licence deed Ex.P1 and the terms and conditions of the licence deed Ex.P1 clearly shows that the defendant is aware about the difference of rent note and licence, and the other conditions of the licence deed Ex.P1 clearly shows that the intention of the parties was to create a licence and not to create tenancy. In a similar case titled Mahesh Kumar Vs.Kamlesh Kumar Sangar and others, 2008(2), the Punjab Law Reporter, page 588, a similar type of document was executed by the parties and the Hon'ble Punjab and Haryana High Court hold the document as of licence and not a lease and the defendant was held to be a licencee and not a tenant in the referred case. The facts of the RSA No.596 of 2010 (O&M) -6- case in hand are similar to the facts of the case titled Mahesh Kumar Versus Kamlesh Kumar Sangar and others (supra). ” Aggrieved against the aforesaid judgment and decree of the first Appellate Court, the present appeal has been filed. Learned counsel for the appellant has failed to point out any error in the impugned order in the face of the law laid downby this Court in the case of Mahesh Kumar Vs.Kamlesh Kumar Sangar and others 2008 (2) Punjab Law Reporter 588. Moreover, the defendant has failed to produce any receipt of the rent paid from which it could be inferred that there was a relationship of landlord and tenant and not of a licensor or licensee. As a matter of fact, no substantial argument has been raised which could be considered in the light of Section 100 of the Code of Civil Procedure, 1908 (for short `CPC') and as such, the present appeal is found to be without any merit and the same is hereby dismissed though without any order as to costs. (Rakesh Kumar Jain) 14.5.2010 Judge Meenu