Achintya
Kumar Saha Vs. M/S Nanee Printers & Ors [2004] Insc 57 (30 January 2004)
P.Venkatarama
Reddi & S.H. Kapadia. Kapadia, J.
Ashok
Kumar Bose (since deceased) was the owner of the premises No. 119/1A, Harish Mukherjee
Road, Bhowanipore, Calcutta 700 026. He died leaving behind him his wife Smt. Madhuri
Bose, (since deceased), Shri Ajoy Kumar Bose (son) and a daughter. Ashok Kumar
Bose left a Will dated 1st March, 1974 bequeathing all his properties to his
widow Smt. Madhuri Bose for the period of her natural life, but with no right
to alienate the property and thereafter to his son Ajoy Kumar Bose (respondent
No. 4 herein). On 5th July, 1976 Smt. Madhuri Bose executed an agreement of licence
for 11 years in favour of M/s Nanee Printers, a proprietary firm carried on by
one Ranaji Ganguly (respondent Nos. 1 and 2 herein). On 10th October, 1980, the
appellant herein bought the entire property No. 119/1A including the suit
premises consisting of a Printing Press in a Katcha shed from Ajoy Kumar Bose
(respondent No.4) to which the deceased Smt. Madhuri Bose was a confirming
party. On 7th July,
1981, the present
appellant filed a Title Suit for eviction against respondent Nos. 1 and 2
herein and sought possession of the suit premises. In the Title Suit, a declaration
was sought to the effect that M/s Nanee Printers were in unauthorised
occupation of the suit premises as trespassers on revocation of the leave and licence
agreement dated 5th
July, 1976. M/s Nanee
Printers contested the Title Suit. In the written statement, they alleged that
they were monthly tenants in the suit premises; that the purported agreement
dated 5th July 1976 was a tenancy in disguise of a licence; that Shri Ajoy
Kumar Bose (respondent No. 4 herein) was a consenting party to the agreement
dated 5th July, 1976 and since respondent No. 2 herein was in need of
accommodation, he had no option but to sign the agreement dated 5th July, 1976.
By the written statement, M/s Nanee Printers denid that Smt. Madhuri Bose
(since deceased) had no right to let out the suit premises on rent. It was
further alleged by M/s Nanee Printers that under the agreement dated 5th July 1976, M/s Nanee Printers were permitted
to install electricity and telephone in the premises and under the
circumstances they were tenants in respect of the premises. In the alternative
it was alleged that even if they were held to be licensees, the said licence
was irrevocable and therefore, the suit was liable to be dismissed with costs.
In the
said suit, the following issues were framed by the trial court:
"1.
Is this suit maintainable?
2. Has
the suit been properly valued?
3. Has
the Court fees been paid sufficient?
4. Has
this Court jurisdiction to try the suit?
5. Are
the defendant Nos. 2 and 3 thika tenants in respect of the suit premises?
6. Is
there any relation of landlord and tenant between the parties?
7. Are
the defendants tenants or licensees in respect of the suit premises?
8. If
the defendants nos. 2 to 3 are found to be licensees, whether the said license
is revocable or not?
9. Is
the plaintiff entitled to get a decree as prayed for?
10. To
what other reliefs, the plaintiff is entitled?"
By
judgment and order dated 29th August 1992, the trial Court came to the
conclusion that respondent Nos. 1 and 2 herein were licensees and not tenants;
that the licence was for 11 years for running a Printing Press with liberty to
the licensor to renew the licence for further 11 years and therefore,
respondent Nos. 1 and 2 were not trespassers as alleged by the appellant (plaintiff)
herein. The trial Court further found that Shri Ajoy Kumar Bose (respondent
No.4) was fully aware of the agreement dated 5th July, 1976 between his mother Smt. Madhuri Bose on one hand and
respondent Nos. 1 and 2 herein on the other hand and that he had consented to
the agreement dated 5th
July, 1976 by his
conduct. However, the trial court found that respondent Nos. 1 and 2 have
failed to prove monthly tenancy.
The
trial court further found that the licence was irrevocable as respondent Nos. 1
and 2 had raised a permanent construction and extension over the existing
structure by 50 feet with the consent of Smt. Madhuri Bose and her son
respondent No.4. The trial court further found that Shri Ajoy Kumar Bose
(respondent No. 4) was an important witness and yet he was not examined by the
appellant herein. In the circumstances, the trial court dismissed the Title
Suit filed by the appellant.
Being
aggrieved by the judgment and order of the trial court, the appellant herein
filed an appeal before the 9th Additional District Judge, Alipore vide Title
Appeal No. 132 of 1993. By judgment and order dated 10th May 1996, the Appellate Court allowed the appeal holding that Smt. Madhuri
Bose had a limited ownership right and she was not competent to create any
right in property and transfer the same in favour of respondent Nos. 1 and 2.
The first Appellate Court further found that there was no evidence of a
irrevocable licence in favour of respondent Nos. 1 and 2 and, therefore, the
judgment of the trial court was reversed and a decree of eviction was passed in
favour of the appellants herein and against respondent Nos. 1 and 2 herein.
Although
the first Appellate Court allowed respondent Nos. 1 and 2 to argue on the
question of tenancy, the Court did not adjudicate upon that question.
Being
aggrieved by the judgment and order of the first Appellate Court dated 10th May 1996, respondent Nos. 1 and 2 herein
preferred an appeal before the High Court being Second Appeal No. 510 of 1996
inter alia on the ground that the first Appellate Court had failed to
adjudicate the question of tenancy; that the first Appellate Court had failed
to appreciate that the licence in question was tenancy in disguise. At this
stage, it may be noted that in the Second Appeal preferred by respondent Nos. 1
and 2 before the High Court, the plea of irrevocable licence was given up. At
this stage, it may be pointed out that during the pendency of the appeal before
the High Court, respondent Nos. 1 and 2 herein had moved an application under
Section 107 Civil Procedure Code (C.P.C.) and under Order XLI Rule 23 C.P.C.
for amendment of the written statement filed by respondent Nos. 1 and 2 in the
trial court. By judgment and order dated 31st January 1997, the application for amendment of
the written statement was dismissed by the High Court pending the hearing and
final disposal of the Second Appeal.
By
judgment and order dated 16th September, 1998 passed by the High Court in
Second Appeal No. 510 of 1996, the High Court came to the conclusion that since
exclusive possession of the suit premises was given for business purposes in a
residential area for consideration to respondent Nos. 1 and 2 with a right to
make further construction, the agreement dated 5th July, 1976 was a tenancy and
not a licence. The High Court further found that under the agreement dated 5th
July 1976, respondent Nos. 1 and 2 were entitled to bring in electricity and
telephone connection which also indicated that the object of the agreement was
to create a tenancy. The High Court further found that the purported licence
was for 11 years with authority given to the licensor Smt. Madhuri Bose to
renew the licence for further 11 years also indicated that the agreement was
that of a tenancy and not a licence. The High Court came to the conclusion that
the agreement was given a nomenclature of leave and licence in order to avoid
the provisions of West Bengal Premises Tenancy Act, 1956 (hereinafter referred
to as "the said Act 1956"). In the circumstances, the High Court came
to the conclusion that the suit instituted by the appellants for eviction of
respondent Nos. 1 and 2 as trespassers was not maintainable. That in this case,
respondent No. 4 was an important witness and yet he was not examined by the
appellant and in the circumstances, the First Appellate Court ought to have
drawn an adverse inference against the appellant. The High Court further
observed that even municipal taxes were payable and paid by respondent Nos. 1
and 2 which circumstance supported the case of tenancy in favour of respondent
Nos. 1 and 2. While allowing the appeal, the High Court further observed that
the tenancy for 11 years came within the purview of the said Act 1956 and in
the absence of notice under Section 13(6)(g) of the said Act 1956 and in the absence
of any of the grounds of eviction under Section 13(1) of the said Act 1956, the
impugned decree was a nullity. Accordingly, the High Court allowed the Second
Appeal No. 510 of 1996 filed by respondent Nos. 1 and 2 and set aside the
judgment and order passed by the First Appellate Court and dismissed the suit
filed by the appellant herein. Being aggrieved by the judgment and order passed
by the High Court, the appellant has come to this Court by way of special
leave.
Before
coming to the arguments, we may point out that in cases where courts are
required to consider the nature of transactions and the status of parties
thereto, one cannot go by mere nomenclatures such as, licence, licensee,
licensor, licence fee etc. In order to ascertain the substance of the
transaction, we have to ascertain the purpose and the substance of the
agreement. In such cases, intention of the parties is the deciding factor. In
order to ascertain the intention, we have to examine the surrounding
circumstances including the conduct of the parties. In the present case, the
High Court was right in examining the terms of agreement coupled with the
circumstances surrounding the agreement in question like exclusive possession
of the premises being given to respondent Nos. 1 and 2 for monetary
consideration for 11 years with a clause of renewal of the licence for further
11 years; payment of municipal taxes by respondent Nos. 1 and 2, the rent
receipts issued by Smt. Madhuri Bose, the premises being let out for business
purposes in a residential locality and conduct of the plaintiffs in not
examining Ajoy Kumar Bose (respondent No.4) who is held to have consented to
the agreement in question. All the above circumstances taken together show that
respondent Nos. 1 and 2 were not trespassers. They show that the agreement was
a tenancy in disguise of a licence.
Mr. Sanyal,
learned senior counsel for the appellant contended that a bare look at Section
100 C.P.C. shows that the jurisdiction of the High Court to entertain the
second appeal is confined to appeals which involve substantial question of law
specifically set out in the Memo of Appeal and formulated by the High Court. He
contended that in the present case no such question has been set out in the
Memo of Appeal and nor is the question so formulated and the High Court was,
therefore, not justified in entertaining the Second Appeal. He further
contended that in second appeal, the High Court proceeded to entertain a new
plea of tenancy under the West Bengal Premises Tenancy Act, 1956 and even
rendered its decision on the said point without following the mandatory
provisions of Section 100 C.P.C. He submitted that tenancy under the said Act
1956 was never in issue. He submitted that the judgment of the High Court was
illegal and in excess of its jurisdiction for deciding a new point taken up for
the first time in second appeal and, therefore, not sustainable and deserves to
be set aside. In this connection, reliance was placed by him on the judgment of
this Court in the case of Kshitish Chandra Purkait vs. Santosh Kumar Purkait
and Others reported in (1997) 5 SCC 438.
Mr. Sanyal
further contended that on 6th April 1992
an application was moved by respondent Nos. 1 and 2 to amend the written
statement pending the hearing and final disposal of second appeal before the
High Court which was expressly rejected by the High Court vide its order dated 31st January 1997. In this connection, it was pointed
out that respondent Nos. 1 and 2 had applied for amendment of the written
statement vide application dated 6.4.1992 in the Title Suit of 1981 and by that
application they attempted to raise a new plea of statutory tenancy under the
said Act 1956 which was rejected by the High Court in second appeal, and yet by
the impugned judgment, the High Court has held that respondent Nos. 1 and 2
were the tenants under the said Act 1956. Mr. Sanyal, therefore, contended that
the High Court had erred in entertaining a new plea for the first time in
second appeal and that it had erred in rendering a decision on a new point
without even prior notice thereof to the appellants which was not permissible
under Section 100 C.P.C. and consequently, the impugned judgment deserves to be
set aside. Learned counsel for the appellant further contended that the High
Court had erred in invoking Section 103 C.P.C. in this case. He contended that
section 103 C.P.C. had no application to the facts of this case as respondent
Nos. 1 and 2 had given up the plea of tenancy (issue No. 6) before the trial
Court.
He
further contended that the trial court in the Title Suit had categorically come
to the conclusion that respondent Nos. 1 and 2 were not the tenants of the suit
premises and despite that declaration no cross objection was filed before the
First Appellate Court. He further pointed out that even the plea of irrevocable
licence was given up by respondent Nos. 1 and 2 in second appeal before the
High Court. Mr. Sanyal, learned senior counsel for the appellant contended that
in order to attract section 103 C.P.C., the appellate Court must be satisfied
that an issue necessary for the disposal of the appeal had arisen before the
lower appellate court which has not been decided by the lower appellate court
or which has been wrongly decided by the said Court. In the circumstances, he
submitted that the High Court had erred in invoking section 103 C.P.C. in this
case.
We do
not find any merit in the arguments advanced on behalf of the appellant. The
main issue around which the entire case evolves is : whether the agreement
dated 5.7.1976 was a license or a tenancy.
This
issue was there before the trial court and the agreement was held to be a
license. It was there also before the lower Appellate Court but it was not
adjudicated upon. When the core issue is not adjudicated upon, it results in a
substantial question of law under section 100 C.P.C. In the case of Santosh Hazari
v. Purushottam Tiward (Dead) by Lrs. reported in AIR 2001 SC 965, it has been
held that whether a question of law is a substantial question of law in a case
will depend on facts and circumstances of each case, the paramount
consideration being the need to strike a balance between obligation to do
justice and necessity to avoid prolongation of any dispute. In that matter,
this Court found that an important issue had arisen for determination before
the first appellate court: whether dependent had made out the case of adverse
possession and whether the suit filed by the plaintiff was liable to be
dismissed as barred by time under Article 65 of the Limitation Act 1963, which issue
was decided by a cryptic order passed by the first appellate court and in the
circumstances this Court took the view that failure to decide the core issue
gives rise to a substantial question of law. In our view, the judgment of this
Court in the case of Santosh Hazari (supra) applies to the facts of this case.
Although
the core issue of tenancy arose before the first appellate court the same was
not adjudicated upon and in the circumstances the High Court was right in
invoking Section 103 C.P.C. Moreover as can be seen from the record, the plea
of tenancy was allowed to be argued before the first appellate court but the
said point was not adjudicated upon. Lastly, in the High Court in second
appeal, this point was argued by both sides whereupon the High Court gave its
finding to the effect that respondent Nos. 1 and 2 were tenants and their
tenancy cannot be terminated without notice under Section 13(6) and the failure
of appellant making out any of the grounds under Section 13(1) of the said Act
1956. Hence, the judgment of this Court in the case of Kshitish Chandra (supra)
has no application. It is now settled by the judgment of this Court in the case
of V. Dhanapal Chettiar vs. Yesodai Ammal reported in AIR 1979 SC 1745 that in
order to get a decree of eviction against the tenancy under any State Rent
Control Act, determination of a lease in accordance with the T.P. Act is
unnecessary and surplusage as the landlord cannot get the eviction of the
tenant even after such determination and the tenant continues to be the tenant
even thereafter till the landlord makes out a case under the Rent Act. This
position is also indicated by the definition of the word 'tenant" under
section 2(h) of the said Act 1956.
Lastly
it has been contended on behalf of the appellant that agreement dated 5th July
1976 has since expired by afflux of time during the pendency of proceedings and
in view of subsequent event the High Court should have moulded the relief and
granted decree for eviction on that ground alone. We do not find any merit in
this argument. The Title Suit filed by the appellant was on the basis that the
agreement dated 5th July, 1976 was a licence which stood revoked and on
revocation the said respondent Nos. 1 and 2 became trespassers. However, in
view of the above finding of the High Court that the said agreement dated 5th
July, 1976 was a contract of tenancy and that the said respondents were
tenants, the entire substratum of the original Title Suit falls. Hence, we do
not find any merit in the above argument.
The
contention of the appellant's counsel that Issue No. 6 having not been pressed
before the trial Court, the plea of tenancy could not have been raised by the
respondents is equally untenable.
Issue
No. 7 is comprehensive enough to cover that point. The fact that petition for
amendment of written statement raising the plea of statutory tenancy was
rejected during the pendency of Second Appeal cannot also be considered to be
fatal to the respondents' case. The issue whether the respondents were tenants or
not was very much alive throughout the proceedings, though the appellate Court
did not deal with that aspect. The High Court, therefore, assumed its powers
under Section 103 and found that issue against the appellant.
For
the foregoing reasons, this civil appeal fails. We, accordingly, dismiss the
same, but in the facts and circumstances of the case, direct the parties to
bear their own costs throughout.
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