* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 23.05.2011
Judgment delivered on: 24.05.2011
+ RSA No.31/2009
M/S S.S. INVESTMENT ...........Appellant
Through: Mr. Rajesh Yadav, Advocate.
Versus
YOGENDRA SEN MANCHANDA & OTHRES ..........Respondent
Through: Mr. S.C.Nigam, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1 This appeal had impugned the judgment and decree dated 22.9.2008 which has endorsed the finding of the trial judge dated 04.7.2005 whereby the suit filed by the plaintiff M/s S.S.Investments seeking mandatory injunction against the defendant (to the effect that the defendants be directed to vacate the suit property i.e. Flat No.2B, Shanker Market, New Delhi) had been dismissed.
2 Plaintiff was allotted the aforenoted suit property by RSA No.31/2009 Page 1 of 10 Ministry of Rehabilitation; thereafter on a permanent basis it was transferred to him on lease basis. The original allottee Pran Nath Mehta had died leaving behind his widow and two daughters, plaintiff and Indra Sahni. Smt.Vidya Mehta had inducted defendants no.1 and 2 as licensees qua the suit property at a licence fee of Rs.300/-. Plaintiff revoked this licence by notice dated 25.2.1997. Defendant had failed to vacate the suit property; decree for mandatory injunction as also for damages has been prayed.
3 In the written statement preliminary objections were taken. It was stated that the suit property had been rented out at a rental of Rs.300/- per month; suit was barred by Section 50 of the Delhi Rent Control Act (hereinafter referred to as „the DRCA‟). It was contended that the flat had been leased out on 10.11.1980 with the condition that as soon as defendant no.1 and 2 float a joint stock company, the tenancy would be transferred in favour of the company; i.e. when M/s Manchanda Properties Pvt. Ltd. comes into existence and they have since been paying rent to Vidya Mehta who had recognized the company as a tenant; the objections filed by the plaintiff has also been dismissed in the court of Additional Rent Controller; the suit is not maintainable. 4 On the pleadings of the parties, the following six issues were RSA No.31/2009 Page 2 of 10 framed:
1. Whether the suit is bad for mis joinder of parties as alleged?
2. Whether the suit is barred by provisions of Section 50 of DRC Act, as alleged?
3. Whether the plaintiff is not entitled to any relief as approached to the court with unclean hands and has suppressed the material facts, as alleged? OPD
4. Whether the suit is not maintainable as in grab of mandatory injunction the plaintiff is trying to take the relief of possession as alleged and hence, plaint is liable to be rejected under Order VII Rule 11 CPC? OPD
5. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
6. Relief.
5 Oral and documentary evidence was led. Court had adverted to the agreement Ex. PW-1/2 wherein it was noted that the defendants no.1 and 2 were tenants in the suit property; suit is barred under Section 50 of the DRCA. Suit stood dismissed. 6 This finding was affirmed in first appeal. First appellate Court was of the view that the appeal had been filed belatedly; it was barred by limitation. It had however proceeded to decide the appeal on its merits; thereafter the appeal stood dismissed. 7 This is a second appeal. It has been admitted and on 05.10.2010 the following substantial question of law was RSA No.31/2009 Page 3 of 10 formulated:
"Whether EX.PW-12 dated 10.11.1980 was a lease or a licence."
8 On behalf of the appellant, it has been urged that the document Ex. PW-1/2 had necessarily intended to create a license and this is evident from a reading of its various clauses which clearly stipulate that the parties had agreed that the tenancy would be created only after the sale deed has been executed in favour of the appellant; admittedly the appellant himself was only a licensee in the suit property; he had no legal right to create a lease in favour of the defendant; it was agreed that the tenancy agreement would in fact be created in future i.e. after the sale deed had been executed in favour of the appellant. Both the courts below have illegally construed this document to be a lease. Attention has been drawn to sub-clause (g) of para 3 wherein again reference has been made to an agreement to be created in the future. To support his submissions learned counsel for the appellant has placed reliance upon AIR 1999 SC 2607 Delta International Ltd. Vs. Shyam Sunder Ganeriwalla and Another, AIR 1989 SC 1834 Provash Chandra Dalui & another Vs. Biswanath Banerjee and another, AIR 1976 SC 1813 Board of Revenue etc. Vs. A.M. Ansari as also another judgment of the Apex RSA No.31/2009 Page 4 of 10 Court in (1989) 1 SCC 19 Smt. Rajbir Kaur & another Vs. M/s S. Chokesiri & Co. It is pointed out that where the party himself is suffering from an inability and is unable to execute the lease, he himself being a lessee, the question of his creating a further lease did not arise. That apart the test of exclusive possession is not by itself decisive of the factor as to whether the parties had intended to create a lease or license and even presuming that exclusive possession of the suit property had been given to the defendant; that by itself would not decipher the intention of the party. 9 Arguments have been countered. It is pointed out that Ex. DW-1/1 to Ex. DW-1/17 were rent receipts which had been executed by the erstwhile owner in favour of the defendant; Ex. DW-1/1 & Ex. DW-1/2 are dated 10.11.1980 which are documents executed by S.K. Mehta; DW-1/13 to Ex DW-1/16 had been executed by the plaintiff Uma Sethi. It is pointed out that the aforenoted documents also have to be read along with Ex.PW-1/2 to decipher the intent of the party. Learned counsel or the respondent has heavily placed reliance on paras 8 & 9 of the judgment reported in (2004) 3 SCC 595 C.M. Beena & another Vs. P.N. Ramachandra Rao.
10 Record has been perused. Question of limitation has been conceded. Counsel for the respondent has fairly conceded that the RSA No.31/2009 Page 5 of 10 first appellate court having delved into the merits of the case, is an implied acceptance of the delay having been condoned. 11 Both the fact finding courts had returned a finding in favour of a lease; on the construction of the document, the impugned judgment while endorsing the finding of the trial Judge had held that the parties had intended to create a lease; Ex.DW-1/ to Ex. DW-1/17 had also been noted in this context.
12 The agreement under scrutiny is Ex.PW-1/2. It is dated 10.11.1980. This document recites that party no. 1 is a lessee; he is lessee of the Ministry of Rehabilitation; all payment had been made to the Ministry qua the conferment of rights in the suit property to party no. 1; the sale deed had not been effected but would be finalized in due course; Ex. PW-1/2 further recites that full payments and consideration qua the ownership rights of the suit property have been received by the Ministry from party no. 1. Clauses on page 2 of the document are relevant. It recites this a "technically proper tenancy" would be created after the sale deed of the premises had been created but a licensee for the user of the flat had been granted by party no. 1 without any technical objection whereas a "clear agreement" to create a "proper tenancy" in favour of the second party i.e. in favour of the defendant has been recited. Clause 2 further recites that as an RSA No.31/2009 Page 6 of 10 "interim measure" to met the technicality of the situation, this license is created; agreed rate of rent was `300/- per month; premises were to be used exclusively for office purpose; electricity and water charges were to be borne by the defendant. It is not in dispute that the exclusive possession of the property since the date of the agreement i.e. from 10.11.1980 is with the defendant. Clause g is also relevant. It states that a "regular tenancy agreement" shall be created after the sale deed had been effected in favour of party no. 1; clear intent being that a prospective tenancy had been created by this document and a regular tenancy would follow thereafter. This clause further recites that party no. 2 has proposed to promote a private limited company and this agreement shall thereafter enure in favour of the said company. It is not disputed before this Court today that this company has since been created under the name of M/s Manchanda Properties (Pvt.) Ltd. and documents Ex. DW-1/13 to Ex. DW-/16 are rent receipts executed by the predecessor in interest of the plaintiff in favour of M/s Manchanda Properties (Pvt.) Ltd. meaning thereby that this clause has also acted upon. Exclusive possession of the defendant qua the said premises has been detailed in para 4. Ex. DW-1/1 to Ex. DW-1/17 are also undisputed documents. RSA No.31/2009 Page 7 of 10 Submission of the appellant that the word „rent‟ used therein is only a casual reference and it is actually a reference to a license fee is a submission which is not sustainable.
13 Documentary evidence had been scrutinized in detail by two fact finding courts below to arrive at a correct interpretation of the document i.e. that the document Ex. PW-1/2 had intended to create a lease between the parties. The submission of learned counsel for the appellant that the appellant himself not being an owner and the sale deed not having been executed between the Ministry of Rehabilitation and between himself, he could not have created a lease is falsified by Ex. PW-1/2 itself. Ex.PW-1/2 has recognized this fact that the Ministry of Rehabilitation is yet to execute the sale deed; the parties had agreed that the regular tenancy agreement would be entered into after the sale deed had been effected in favour of party no. 1 and till that time as an interim measure a provisional lease deed had been created. Ex.PW-1/2 also recites that the complete payment for conferring ownership on party no. 1 had been made to the Ministry; the technicality of the sale deed only had to follow; this technicality has been overcome by reciting in Ex.PW-1/2 that a "proper tenancy" would be created later on i.e. after the sale deed has been executed; till that time as an "interim measure" this RSA No.31/2009 Page 8 of 10 document is being created. The intention of the parties was unambiguous; it was to create a lease. The finding on this score suffers from no perversity.
14 The judgments relied upon by learned counsel for the appellant are distinct on their own fact. In the case of Delta International (Supra) upon which learned counsel has placed heavy reliance (clauses C & D of para 5) are inapplicable; there is no dispute to the proposition that exclusive possession of the premises although the main factor is not the exclusive test for determining the intent of the parties and this had been noted and deciphered in the impugned judgment. Clause D had noted the principle that where the grantor does not have the powers to create a lease, such a document could not create a lease; facts of the said case were distinct; clause 12 of the document had been considered by the Apex court which had clearly and expressly stated that the document under scrutiny will not been construed as a tenancy or a lease under the West Bengal Premises Tenancy Act to confer relationship of landlord and tenant between the parties; weightage had been given to this clause. The other judgments relied upon by learned counsel for the appellant also recite the principles which have been enumerated by the courts in RSA No.31/2009 Page 9 of 10 construing such a document i.e. whether the intent is to create a lease or license. There is also no doubt to the settled proposition that the nomenclature of document is not important; whether the word „lease‟, „license‟, „rent‟ or „license fee‟ is used would not over close the other arguments to decide the intention of the parties which intention has to be gathered from a close scrutiny of the document along with other correspondence, if any, exchanged between the parties, the conduct of the parties before and after the document has been created as also the other surrounding circumstances. All these aforenoted principles have been rightly considered and weighed in the mind of the first appellate court in construing this document to be a lease.
15 Substantial question of law is accordingly answered in favour of the respondent and against the appellant. There is no merit in this appeal. Dismissed.
INDERMEET KAUR, J.
MAY 24, 2011 a RSA No.31/2009 Page 10 of 10