Rajnider Kumar Sharma vs Kharaiti Lal Sharma
1991 Latest Caselaw 589 Del

JUDGMENT

C.L. Chandhary, J.

(1) This regular second appeal is directed against the Judgment and decree passed by the Additional District Judge, Delhi on 10.4.1979 by which the appeal of the respondent was allowed and the suit of the appellant was dismissed.

(2) The facts giving rise to this appeal are that the predecessor-in- interest of the appellant, Shri H.S. Sharma, hied a suit for mandatory injunction against the respondent on the allegations that he was the owner and landlord of the premises N o. 26, Faiz Bazar, Darya Ganj, Delhi-110006. That on 2.3.1960 he accepted the respondent as a Manager in his tailoring business which was later put under the name and style of M/s. Upkeep Tailors, who agreed to work as Such on me terms and conditions given in his undertaking of inc same date. That with effect from 2.3.1960 the defendant Was permitted to use the shop on the ground floor of the building No. 26, Faiz Bazar, Delhi marked red in the plan attactied, only to manage the plaintiff's tailoring business as a licensee. he has been in possession thereof in the said capacity ever since. Because of the repeated contraventions of the terms and conditions undertaken to be performed by. the respondent, the plaintiff in the month of April, 1 1966 orally terminated the agreement and thereby the license granted to him. On 4.6.1966 a notice in writing was also given to him. The respondent was asked repeatedly to remove himself from the shop but he failed to do so. Under these premises a decree for mandatory injunction directing the defendant to remove himself from the shop was claimed.

(3) The suit was resisted on behalf of the respondent. In the written statement the plea taken was that the respondent was in actual physical possession of the property as a tenant under Shri H.S. Sharma on monthly rent of Rs. 30.00 . That the Civil Court had no jurisdiction to entertain the suit. It was also pleaded that the suit was improperly valued for the purposes of Court fee and jurisdiction. Regarding the undertaking it was pleaded that the undertaking was neither legal nor valid, hence could not be relied upon and in fact it was never acted upon. The respondent was never appointed as Manager of the tailoring business. The alleged undertaking was secured from him in order to circumvent the provisions of Delhi Rent Control Act. The respondent started his own tailoring business in the name of M/s. Upkeep Tailors. Shri H.S. Shrama had absolutely nothing to do with the business and he was regularly paid the rent and electricity charges. Shri H.S. Sharma stopped accepting the rent from him from June, 1966.

(4) On the pleadings of the parties the following issues were framed :-

1. Whether the defendant is a licensee of the permises in dispute as alleged ? 2. Whether the license has been terminated and if so from which date ? 3. Whether the defendant is a tenant of the suit permises ? 4. Whether this suit is not correctly valued for the purposes of Court fee and jurisdiction. 5. Whether this Court has no jurisdiction to try this suit ? 6. Relief.

Parties led evidence. The learned subordinate Judge passed a decree for mandatory injunction. On issues No. 1 & 3 the trial Court returned the finding that the respondent was a licensee. On issue No. 5 it was held that the Civil Court had the jurisdiction to try the suit. Issue No. 2 was also decided in favor of the appellant. The respondent preferred an appeal against the judgment of the Subordinate Judge. The learned Additional District Judge reversed the findings of the trial Court and held that the respondent was a tenant and not a licensee. In view of this finding, the appeal was allowed and the suit was partly dismissed. The judgment of the learned Additional District Judge dated 16.4.1979 has been assailed by the plaintiff by way of this appeal.

(5) The only question that arises for determination in this appeal is- Whether the respondent is a licensee or a tenant ?

(6) On behalf of the appellant Mr. Bhagat contended that Ex. P-1 is an undertaking given by the respondent and he is bound by it. From Ex. P-l it is expressly clear that he occupied the shop as a licensee. The intention of the party must be gathered from the document executed by him. Other evidence would be relevant only if there is no document regulating the relationship between the parties. In support of his contention, he relied upon a judgment of the Supreme Court in Mrs. M.N. Clubwala and Another v. Fida Hussain Saheb and Others : wherein it was held that "whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This Intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties." The other judgment relief upon by Mr. Bhagat is the case of Capt. B.V.D. Souza v. Fausto Fernhandes, reported as , wherin it was held as under : "FOR ascertaining whether a document creates a license or lease, the substance of the document must be preferred to the form. It is not correct to say that exclusive possession of a party is irrelevant but at the same time it is not conclusive. The other tests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations."

It was also contended by Mr. Bhagat that the respondent was accepted as a Manager on 2.3.1960 on an oral agreement and thereafter he executed an undertaking on 28.3.1960. Ex. P-1 is a relevant document. This writing is dated 28.3.1960 and for the sake of convenience its contents are reproduced herein below:

"I agree to work in the Tailoring House of Shri H.S. Sharma, 26, Fail Bazar, Delhi on the following terms and conditions :-

(A)I would work in the said business as Manager and cutter and agree to my remuneration on the basis of net profits there from. I will be paid 50?% out of the net profits which will be ascertained after deducting the expenses such as salaries or percentages of tailors; payment of electric and water bills; purchase of machinery and tools; and other like expenses in the running of the business.

(B)The following machinery and tools are my property and I will be entitled to get them back on the termination of the contract:- 1. One Paras Sewing Machine (Paddle Driven); 2. I Paras stand sewing machine; 3. One cutting table; 4. One looking glass; 5. One Darrie; 6. One pair of scissors; and 7. Hangers etc.

(C)Further contribution in furniture and machinery etc. will be that of the business concern.

(D)I will keep registers of- (i) Cash Book; (ii) Ledger; (iii) Order Book; (iv) Stock Book; (v) Daily Work Register; (vi) Advance Register.

(E)This agreement will remain in force for a period of one year in the first instance and will continue on these terms even afterwards if not terminated by notice in writing earlier.

(F)Mr. H.S. Sharma will be entitled to terminate the business if the business runs into loss or in case of dispute between the parties.

(G)Accounts will be taken at the end of every English Calendar month. But I shall take money in advance as required which will be adjusted at the end of month. The accounts will be kept by Mr. H.S. Sharma.

Dated; 28.3.60 sd/- Kharaiti Lal Sharma."

It was also contended by Mr. Bhagat that the terms of Ex. P-1 could not be varied by oral evld(r)nce.

(7) On behalf of the respondent it was urged by Mr. Chaudhary that the appeal does not raise a substantial question of law and the question involved is a question of fact. The High Court in exercise of its power under Section 100 of the Code of Civil Procedure cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the First Appellate Court. In support of his contention, he relief upon a judgment of Supreme Court in the case of Dudh Nath Pandey v. Suresh Chandra Bhattasali; reported as . He further contended that the writing of the respondent is dated 28.3.1960. In the plaint, it was stated that the respondent was accepted as a Manager on 2 3.1960. No agreement of 23.1960 has been produced. It was further contended that even the writing dated 28.3.1960 does not per se amount to an agreement, It Is just a proposal. It was not signed by Mr.H.S.Sharma. The writing dated 28.3.1960 was obtained subsequent to the occupation of the shop by the respondent. It was further urged that the learned Additional District Judge after taking into consideration the entire evidence on record came to the conclusion that the respondent was in exclusive possession of the premises and the business which was carried on under the name and style of M/s. Up Keep Tailors was his exclusive business and he was carrying it on as owner and not in partnership with Shri H.S. Sharma. It was contended that the undertaking was neither legal nor valid and it can not be relied upon and in fact was never acted upon. The respondent was never appointed Manager of (he tailoring business. The alleged undertaking was secured from him in order to circumvent the provisions of Delhi Rent Control Act. The undertaking was not given by the respondent by his free consent. In support of his contention, he relied upon a judgment of Supreme Court in the page of Murlidhar Aggarwal and Another v. State of Uttar Pradesh and Others, reported as , wherein in paragraph 25 it was observed as under: "SO,the question is, whether Section 3 was enacted only for the benefit of tenants or whether there Is a public policy underlying it which precludes a tenant from waiving its benefits. There can be no doubt that the provision has been enacted for protecting one set of men from another set of men, the one from their situation and condition are liable to be oppressed and imposed upon. Necessitous men are not free men."

(8) I have heard the learned Counsel for the parties. The appellate Court returned the finding that the writing Ex. P-1 did not constitute a contract for the reason that the alleged agreement was unilateral and was not bilateral as it was not signed by Shri H S. Sharma. After appraising the evidence the appellate Court also came to the conclusion that the respondent was the owner of the business which was being carried on in the disputed premises under the name and style of M/s. Up Keep Tailors.

(9) In the plaint it is stated that the respondent was accepted as a Manager on 2.3.1960 in his tailoring business which was later put under the name and style of M/s Up Keep Tailors and with effect from 2.3.1960 the respondent was permitted the use of the shop only to manage the plaintiff's tailoring business as a licensee. In his statement Shri H.S. Sharma stated that the respondent had been working as a Manager-cutter since 2.3.1960. So It is clear from the plaint as well as the statement of Shri Sharma that the respondent occupied the shop on 2.3.1960. Admittedly nothing has been placed on the record as to the terms and conditions on which the respondent was allowed to use the shop from 2.3.1960. It is evident that there must be some oral agreement between the parties. The writing was given by the respondent on 28.3.1960. The contention of Mr. Bhagat is that the intention of the parties must be gathered from the undertaking executed by the respondent on 28.3.1960. In my opinion the contention of Mr. Bhagat does not have much force for the reason that the document was executed subsequent to the occupying of the premises by the respondent. On what terms and conditions the respondent was allowed to use the shop on 2.3.1960 has to be gathered from the circumstances of the case and not from the document dated 28.3.1960. No doubt Ex. P-1 is a relevant document in order to find out the intention of the parties. The case of the respondent is that this document was never meant to be acted upon. The signatures of the respondent were obtained on Ex. P-l with a view to circumvent the provisions of Delhi Rent Control Act. In fact the shop was let out to the respondent on a monthly rent of Rs. 30.00 .

(10) I have bestowed my thoughtful consideration to the matter at issue. In my opinion the intention of the parties has to be gathered from the surrounding circumstances of the case. The respondent occupied the shop on 2.3.1960 whereas Ex. P-1 was executed on 28.3.1960. There is no writing dated 2.3.1960. The respondent has placed on record overwhelming evidence to show that he was running the tailoring business in the disputed shop as owner under the name and style of M/s. Up Keep Tailors. Ex. D.W. 16/2 is the copy of the petition which the appellant filed before Shri O.P. Garg, Sub Judge 1st Class for fixation of the standard rent. Exs. Ex. D.W. 15/8 is a certificate issued from the office of Chief Inspector of Shops and Establishments wherein the respondent has been shown as the employer-owner-occupier of the disputed property and carrying on his business under the name and style of M/s. Up Keep Tailors. Ex. D.W. 15/7 is a summon issued by the Rent Controller to the respondent showing him as the owner of M/s. Up Keep Tailors. Ex. D.W. 9/1 is a copy of the Fir dated 16.8.1961 lodged with police station Faiz Bazar regarding theft in the disputed property, wherein it has been mentioned that the respondent has been carrying on the business. Ex. D.W. 5/1 is the account opening form dated 21.10.1964 of M/s. Up Keep Tailors and Drapers with the instruction that Shri Kharaiti Lal, sole proprietor will operate the account. Ex. D.W. 7/1 to Ex. D.W. 7/3 are the Hire Purchase Agreements for the sale of Sewing Machines which are in the name of Mr. Kharaiti Lal, 26, Faiz Bazar, Darya Ganj, Delhi pertaining to the years 1962-63, 1963-64 and 1964-65.

(11) As per Ex. P-1 Mr. H.S. Sharma was to keep the accounts. In hit statement dated 26.7.1967 he stated that the respondent used to maintain the accounts regarding profits of the business. In his subsequent statement recorded on 20.2.1971 he deposed that the accounts were to be maintained by him and be maintained the same for some time. Those accounts have not been produced. He also deposed that he used to maintain the employees register in which the name of the respondent was entered as a Manager and Cutter and that register bad been taken away by the respondent. No attempt was made to get that register produced from the respondent. In his statement he also stated that each year the profit was not more than Rs. 100.00 , Rs. 200.00 and Rs. 150.00 and that is why he did not enter this figure in his account books. It is highly unbelievable that Shri Sharma continued to carry on the business in partnership with the respondent inspite of the fact that the profit was to the tune of Rs. 100.00 to Rs. 150.00 per year. According to him he terminated the license in the year 1966. It means that he continued this business for 6 years without any profit. This does not appeal to reason. It has also come in the evidence that previously the shop was let out at a rent of Rs. 140.00 per month. Shri Sharma could not afford to continue the business in partnership with the respondent for six years If it was not fetching any profit. This Is a circumstance, which to my mind clearly Indicates that Mr. Sharma was not at all concerned with the profits of the business. Otherwise he would not have carried on the business with the respondent for a period of 6 years without any profit. The account books have also not been produced by Mr. Sharma to show that the business was carried on in partnership and he was getting profits.

(12) In my opinion from the surrounding circumstances it is evident that Shri Sharma did not participate in the business at all and It was exclusively run by the respondent. Ex. P-1 was not acted upon and the real Intention of the parties was to let out the shop to the respondent.

(13) From the evidence placed on the record the appellate Court came to the conclusion that the respondent was a tenant of the shop at a monthly rent of Rs. 30.00 . I am not inclined to accept the finding of the appellant Court because it is not based on any material or evidence. No documentary evidence was placed on record by the respondent that he ever paid the rent @ Rs. 30.00 per month. Moreover when there is documentary evidence on the record to show that previously the shop was let at a rent of Rs. 140.00 per month, it is highly unbelievable that the shop which was fetching rent of Rs. 140.00 per month could have been given to the respondent at a monthly rent of Rs. 30.00 . In my opinion the shop could not have been let out at a rent which was lower than Rs. 140.00 per month I hold that the rent of the shop could not be legs than Rs. 140.00 per month. The respondent is liable to pay rent @ Rs. 140.00 per month.

(14) As a result the appeal is partly allowed and the judgment of the learned Additional District Judge holding that the rent payable by the respondent is Rs. 30.00 per month is set aside. I confirm the finding of the learned Additional District Judge that the respondent is a tenant in the premises in dispute and I further hold that the rent payable by the respondent as a tenant Is Rs. 140.00 per month. In the terms the appeal is disposed of. The parties are left to bear their own costs.