Arun Mudgil And Anr. vs D.C.M. Ltd.
1997 Latest Caselaw 302 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) This appeal is directed against the judgment dated 2.1.96 passed by the A.D.J, Delhi in Civil Appeal No. 24/1994 arising out of judgment dated 29.11.86 passed by the Sub-Judge, Delhi in Civil Suit No. 230/1981, dismissing the plaintiff's suit for recovery of possession and damages.

(2) The respondent-Company is maintaining a colony for residential purposes of its employees and allots quarters to them during the course of their employment. The defendant Harcharan Singh Sharma, since deceased, predecessor of the appellants, was employed as a worker in the, respondent-Company and by virtue of his employment the residential quarter (suit accommodation) was allotted to him as a licensee at a monthly licence fee of Rs. 40.15 vide deed of licence dated (Ex. Public Witness . 3/1). The licence fee was subsequently enhanced to Rs. 44.30 p. per month. The deceased defendant retired from service of the respondent-Company on 9.12.80 as a result whereof his licence stood terminated from the date of his retirement. Despite service of notice dated 17.4.81, the defendant did not vacate the suit accommodation. The respondent-Company filed suit for possession and damages, which was resisted by the defendant on the ground that the transaction was only a lease arrangement and the parties are governed by a lesser-lessee relationship. It was also pleaded that the suit accommodation is situated in a slum area and as such the suit is barred under Section 19(1) of the Slum Areas (Improvement and Clearance) Act. The learned Sub-Judge by the judgment dated 29.11.86 found that the deceased defendant Harcharan Singh Sharma was an employee of the respondent-Company and by virtue of his employment the residential quarter in the colony was allotted to him. It was further held that the deed of agreement (Ex. P.W. 3/1) created relationship of landlord and tenant between the parties and that the plaintiff's suit for recovery of possession was barred under Section 19(1) of the Slum Areas (Improvement and Clearance) Act. Accordingly, the plaintiff's suit was dismissed. In appeal filed by the plaintiff, the learned Addl. District Judge by judgment dated 2.1.96 held on an analysis of the facts and circumstances that the defendant was a mere licensee and his licence stood terminated on the date of his retirement. The judgment and decree of the Trial Court was set aside and the plaintiff's suit was decreed. Feeling aggrieved, the defendant has filed this appeal under Section 100, Civil Procedure Code

(3) The main question involved in this appeal is whether the deceased defendant Harcharan Singh Sharma was a licensee or a tenant and also incidentally the question whether the Trial Court had jurisdiction to deal with the eviction suit in this case. It is well settled that in determining 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. Inevitably, the issue here has to run around the terms and conditions of the agreement dated (Ex. Public Witness . 3.1). Both the Courts below have concurrently found that the said agreement (Ex. Public Witness . 3/1) was duly executed between the parties. It is now well settled that concurrent findings of fact of Trial Court and first Appellate Court cannot be interfered with by this Court in exercise of jurisdiction under Section 100, Civil Procedure Code The Trial Court interpreted the agreement (Ex. Public Witness . 3/1) as a contract of tenancy, whereas, the lower Appellate Court, relying upon the judgment of Full Bench of this Court in the case of D.C.M. v. Lt. Governor & Ors., Fao (OS) No. 218/90 decided on 1.10.93, construed it as a deed of licence. The appellants, main grievance is that the said agreement (Ex. Public Witness . 3/1) has been misconstrued by the lower Appellate Court. Admittedly, the deceased defendant was an employee of the respondent-Company and he was given the quarter for residential purposes and that too on account of his being in employment of the respondent-Company. It is also undisputed that the defendant retired from service of the respondent-Company on 9.12.80.

(4) The lower Appellate Court has held that the case is covered by the Full Bench decision of this Court in D.C.M. v. Lt. Governor & Ors., (supra) wherein identical deed of licence of the respondent-Company was considered and it was held that the terms and conditions of the document clearly show that the same created a licence and not a lease. It is significant that it has not been disputed before me that the .terms and conditions of the agreement (Ex. Public Witness .I/3) and those mentioned in the document before the Full Bench in the case of D.C.M. Ltd. v. Lt. Governor (supra.) are identical. In the agreement (Ex. Public Witness PW. 1/3), the parties were described as licensor and the licensee. The licensee was given the right to use and occupy the quarter during his employment in the respondent-Company. Then followed the terms and conditions subject to which the licence was granted. The document provided that the licensee was given leave and licence to occupy the licensed promises without creating any sort of tenancy rights in favour of the licensee. The recitals therein recite that the licence was granted while the licensee was in the employment of the Company and for the sole purpose of the licensee being more conveniently situated in such employment was permitted by the Company to occupy and use the suit accommodation as a licensee. It was stated that the legal possession of the suit accommodation would always remain with the Company. It was stipulated that the licensee shall not allow any other person to use and occupy the suit accommodation. It further goes on to state that the licensee shall not keep any domestic animal such as cow, goat, buffalo etc. The agreement further recited that the licensee shall not make any alterations, whether of temporary or permanent nature, in the suit accommodation. It was further mentioned in the said agreement that the licence would stand revoked on the workman leaving the employment of the Company or on his transfer. The aforesaid terms of the agreement (Ex. Public Witness .3/1) are consistent with the expressed intention that the licensee by virtue of his employment in the respondent -Company was permitted to occupy the suit accommodation for the greater convenience of his work. It appears that primary object of the allotment of the suit accommodation was to secure the service of the defendant and the accommodation was subsidiary object. Thus, the licensee's employment in the respondent Company was a circumstance justifying the creation of a licence. From the facts and circumstances surrounding and appertaining the transaction, it is clear that it was licence and not a lease. In the aforesaid view of the matter, this appeal must fail as I find no aground to interfere with the decision of the lower Appellate Court. The appeal fails and is dismissed with costs.