Case: Sohan Lal Naraindas Vs. Laxmidas Raghunath Gadit

1. Sohan Lal Naraindas hereinafter referred to as the plaintff-commenced an action in the City Civil Court, Bombay, for a decree in ejectment against Laxmidas Raghunath hereinafter called the defendant-alleging that the defendant was occupying a loft 19 x 15 on the upper floor of a building at Pragraj Galli, Mulji Jetha Market, Bombay under an agreement of licence dated November 3, 1958 and that the licence had been duly terminated and withdrawn but the defendant had failed and neglected to vacate the loft notwithstanding the demand. The defendant contended that he was a tenant of the loft, that the tenancy had not been duly terminated as required by law, that he was entitled to the protection of the Bombay Rents Hotel & Lodging House Rates Contract Act 1947 and that the Court had no jurisdiction to try the suit.      2. The Trial Court dismissed the suit holding that the defendant was a tenant of the plaintiff and not his licensee. The decree was confirmed in appeal, by the High Court of Bombay. The High Court held that on the terms of the agreement and in the light of the surrounding circumstances the relationship between the parties was that of landlord and tenant. With certificate granted by the High Court the plaintiff has appealed to this Court.

Reasoning: 3. The certificate granted by the High Court is defective. The plaintiff applied for certificate under Article 133(1)(a) of the Constitution and in the alternative under Article 133(1)(c) of the Constitution. The High Court passed an order certifying the case under Article 133(1)(c). A certificate granted by the High Court must be supported by adequate reasons. It is obligatory upon the High Court to set out the question of public or private importance which in their opinion fall to be determined in the proposed appeal. Since we are of the view that there is no merit in this appeal, we have not thought it fit to vacate the certificate5. The defendant was put in exclusive possession of the loft. The plaintiff did not reserve possession of any part of the loft or a right of entry therein. The loft had a separate entrance. The customers of the defendant used the separate entrance to the loft during the business hours and his stock of cloth remained in the loft after business hours. The plaintiff and defendant were both cloth merchants, and the only consideration for granting the licence was the payment of Rs. 250/-per month. There is no evidence that the loft was given to the defendant out of sympathy or because of friendship, or relationship, or any similar motive. It was stipulated that the plaintiff may terminate the agreement by giving one months clear notice, the agreement could not be terminated by notice of a shorter duration6. An attempt was deliberately made to camouflage the true nature of. the agreement, by reciting in several clauses that the agreement was for leave and licence, and to emphasise the presence it was also recited that the defendant was not to have any right as tenant or Sub-tenant in respect of the loft7. At the trial the elder brother of the defendant was examined as a witness. He stated that the agreement dated November 3, 1958 was intended to be an agreement of lease, but the plaintiff insisted that the agreement be drafted with the conditions set out therein8. 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 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. Mrs. M.N. Clubwala v. Fida Hussain Saheb and Ors : [1964]6SCR6429. The Trial Court regarded exclusive possession of the premises given to the defendant as conclusive of the question whether the loft was in the occupation of the defendant as a tenant. The Court observed that on a consideration of the clauses of the agreement it was unable to reach a conclusion whether the agreement was intended to operate as a lease or as a licence but since exclusive possession was given it must be regarded a lease. The High Court considered all the covenants and the attendant circumstances and reached the conclusion that having regard to the exclusive possession given to the defendant it was intended to confer an interest in the loft and on that account the agreement operated as a lease and not as a licence10. We have carefully considered the covenants in the light of the relevant surrounding circumstances.