Kerala High Court
P.K.Suresh vs Manakkoth Koloth Suseela on 12 November, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 12TH DAY OF NOVEMBER 2024 / 21ST KARTHIKA, 1946
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AGAINST THE JUDGMENT AND DECREE DATED 25.01.2018 IN AS NO.48 OF 2016
OF ADDITIONAL DISTRICT COURT IV, KOZHIKODE ARISING OUT OF THE JUDGMENT
AND DECREE DATED 26.11.2015 IN OS NO.183 OF 2013 OF III ADDITIONAL SUB
COURT, KOZHIKODE
APPELLANT/APPELLANT/DEFENDANT:
P.K.SURESH
AGED 46 YEARS, S/O. LATE KUNHISANKARA MENON, DOING BUSINESS,
RESIDING AT KOLLATH HOUSE, P.O.MEENCHANTHA, VALAYANADU AMSOM
DESOM, KOZHIKODE TALUK, KOZHIKODE.
BY ADVS.
SRI.A.SUDHI VASUDEVAN (SR.)
SRI.JOSE JONES JOSEPH
SRI.P.KRISHNA KUMAR K-544
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 MANAKKOTH KOLOTH SUSEELA
AGES 73 YEARS, W/O. LATE VELAYUDHAN, RETIRED TEACHER,
'BHAVANA' VALAYANADU AMSOM DESOM, KOZHIKODE TALUK,
KOZHIKODE.
2 BINDU
AGED 43 YEARS, S/O. LATE VELAYUDHAN, SCHOOL TEACHER,
'BHAVANA', VALAYANADU AMSOM DESOM, KOZHIKODE TALUK,
KOZHIKODE.
3 JAYADEV P.K.
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AGED 41 YEARS
S/O. LATE VELAYUDHAN, RUNNING PRINTING PRESS, 'BHAVANA'
VALAYANADU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE.
R1 TO R3 BY ADV SRI.K.A.SALIL NARAYANAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
12.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendant in O.S.No.183/2013 on the files of the Additional
Sub Court III Kozhikode is the appellant. The suit was filed by the
respondents/plaintiffs seeking a mandatory injunction directing
the defendant to remove from the plaint schedule property and for
the realization of an amount of damages for the use and
occupation of the plaint schedule room on the allegation that the
defendant is a licensee of the plaint schedule room as per Ext.A1
Licence Agreement dt. 01.07.2005; that the Licence was
terminated as per Ext.A2 Lawyer Notice dt 04.01.2013 and that
the defendant is liable to pay an amount of Rs.11,6800/- to the
plaintiffs as damages for the use and occupation for the plaint
schedule room for the period from 21.01.2007 to 21.02.2013 @
Rs.1,600/- per month.
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2. The defendant opposed the suit prayers by filing Written
Statement contending, inter alia, that he has been occupying the
plaint schedule room as a tenant from 13.11.2001; that the
relationship between the plaintiff and the defendant is that of a
landlord-tenant relationship and the defendant is entitled to get
protection under the Kerala Buildings (Lease Rent Control) Act
1965 and he can be evicted only as per the provisions of the said
Act and that the rent is in arrears only because of the plaintiffs
intentionally avoided receiving the rent.
3. On the side of the plaintiffs, the 3rd plaintiff was examined as PW1
and marked Exts. A1 to A3 and on the side of the defendants, the
defendant was examined as DW1 and marked Exts.B1 to B19.
4. The Trial Court by the judgment and decree dt. 26.11.2015
decreed the suit directing the defendant to surrender vacant
possession of the plaint schedule premises within two months
from the date of the decree, in default, allowing the plaintiff to get
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vacant of the plaint schedule premises through the process of the
court and allowing to recover Rs.57,600/- together with interest @
6% per annum from the date of the suit till realization. The Trial
Court found that the relationship between the plaintiff and the
defendant is that of licensor-licensee created as per Ext.A1; that
the plaintiffs are entitled to recover damages only for the period of
36 months immediately preceding the date of filing of the suit as
the remaining claim is time-barred. Though the defendant filed
A.S No. 48/2016 before the First Appellate Court the same was
dismissed as per judgment and decree dt 25.01.2018 confirming
the judgment and decree of the Trial Court.
5. This Court issued notice before admission to the respondents,
and thus, the respondents appeared through counsel.
6. I heard the learned Senior Counsel for the appellant Sri.A Sudhi
Vasudevan instructed by Adv.Sri. P Krishnakumar and the learned
Counsel for the respondents Sri. Salil Narayan K.A.
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7. The learned Counsel for the appellant argued that the Trial court,
as well as the First Appellate Court, illegally found that the
relationship between the plaintiff and the defendant is that of
the licensor-licensee. The pleadings and evidence would amply
prove that the relationship is that of landlord-tenant. It is well
settled by the decision of this Court as well as the Hon'ble
Supreme Court that when exclusive possession is given, the
nature of the relationship is license and not lease. The learned
Senior Counsel cited the decision of the Hon'ble Supreme Court
in Beena v. Ramachandra Rao 2004 (3) SCC 595 and the decision
of this Court in George Chandy and others v. Beena and others
2018 KHC 5252 to substantiate the said legal proposition. The
learned Senior Counsel cited the decision of this Court in Vimala
v. Sankaran Kutty Nair AIR 2004 Ker 278 to explain as to how the
relationship is to be ascertained, in which it is held that the
question whether the relationship is that of landlord-tenant or of
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licensor-licensee depends upon the intention of the parties and in
ascertaining the intention the Court should consider the
circumstances in which the person claiming to be a tenant went
into occupation and whether the conduct of the parties showing
that the occupier was intended to have an interest in the land or
merely a personal privilege without such interest. The learned
Senior Counsel pointed out the admission of PW1 in his evidence
to the effect that the defendant had been exclusively possessing
the plaint schedule room for eleven months. The learned Senior
Counsel contended that going by the pleadings in the Plaint, the
plaint schedule room was given to the defendant and one Mr.
Yunus as per Agreement dt 13.11.2001 and hence the suit without
him on the party array is bad for nonjoinder of necessary parties.
The Trial Court has specifically found that the arrangements
started as per Ext. B1 agreement dt 13.11.2001 and that there was
no surrender at any point of time as claimed by the plaintiff. As per
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S.39 of the Specific Relief Act, the relief of mandatory injunction
is discretionary, and hence, the Trial Court ought to have
dismissed the suit when it is found that the plaintiff approached
the Court with false averments. The learned Senior Counsel cited
the decision of this Court in Madhu Gupta v. K T Hassan Koya
2019 (5) KHC 42 in which it is held that the mandatory injunction
by its nature embodied under S.39 of the Specific Relief Act is
discretionary. The learned Senior Counsel contended that the
Trial Court, as well as the First Appellate Court, did not consider
the recitals in Ext.B1 by which the arrangement was chartered to
find out the real nature of the relationship between the plaintiff
and the defendants. The learned Senior Counsel contended that
even going by Ext.A1 agreement the license arrangement between
the plaintiff and the defendant was for a period of eleven months
from 01.07.2005 and the suit was filed only in the year 2013 after
the long expiry of the license and hence the suit for mandatory
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injunction is not maintainable and the suit should have been filed
for recovery of possession.
8. On the other hand, the learned Counsel for the respondents
contended that Ext.B1 and Ext.A1 would prove that the
relationship between the plaintiffs and defendant is that of the
licensor-licensee and not of the landlord-tenant. In view of S.91
and 92 of the Indian Evidence Act, a person who is a party to the
document cannot contend against the terms of the document.
The learned Counsel cited the decision of this Court in Aayisa
Anees v. K Vinod,2024 KLT OnLine 1261 to substantiate this
point. The learned Counsel contended that the license
arrangement was terminated by Ext.A2 Lawyer Notice dt
04.01.2013 and the suit was filed on 02.03.2013 and hence the
suit for mandatory injunction filed within a reasonable time after
termination of the license is perfectly maintainable. The plaintiffs
have not made any false allegations in the Plaint, and the Trial
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Court exercised its discretion in the right manner in favour of the
plaintiff. The Trial Court, as well as the First Appellate Court,
entered concurrent findings on facts that could not be interfered
with by this Court in a Second Appeal.
9. I have considered the rival contentions.
10. It is true that the nomenclature of the document is not decisive in
finding out the real relationship between the parties. It is the
substance of the document which is to be considered to decide
the relationship of the parties. As rightly found by the Trial Court
as well as the First Appellate Court, Ext.A1 would reveal only a
license arrangement between the parties and not a lease
arrangement. The terms of Ext.B1 also would reveal that the
relationship of the parties is in the nature of the license. In view of
the decision of this court in Aayisa Anees (supra) it is well settled
that the parties to a document cannot contend against the terms
of the document in view of the bar under Ss.94 and 95 of the
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Bharatiya Sakshya Adhiniyam 2023 corresponding to Ss.91 and 92
of the Indian Evidence Act. The contention of the Senior Counsel
for the appellant is that the said provisions bar only adducing
evidence against the terms of the agreement, and it does not
prevent the Court from considering the subsequent conduct of
the parties based on the said agreement. I am unable to accept
the said argument since Ext.A1 and Ext.B1 reveal only a license
arrangement, and hence the parties could not adduce evidence
to prove that the arrangement is that of a lease when the
occupation continued without any break.
11. Though a contention was raised in the Second Appeal that
the suit is bad for nonjoinder of necessary parties on account of
the non-impleadment of Mr. Yunus, the co-licensee of the
defendant as per Ext.B1, no such contention is seen raised either
before the Trial Court or before the First Appellate Court. In the
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Written Statement filed by the defendant and in the evidence
adduced by him as DW1, he has specifically stated that he has
been holding the plaint schedule room exclusively and he has not
raised any contention that the said Yunus is also having right in the
plaint schedule room. Hence, the contention that the suit is bad
for the non-joinder of necessary parties is also unsustainable.
12. Even though the plaintiff did not produce Ext.B1 original
Agreement dt 13.11.2001, the plaintiffs have specifically averred
in the Plaint that the license arrangement started as per
agreement dt 13.11.2001. Though the Trial Court found that there
was no surrender of the plaint schedule premises as contended
by the plaintiff, it is not a ground or reason for refusing to exercise
the discretion in favour of the plaintiff under S.39 of the Specific
Relief Act. The plaintiffs have not made any material suppression
with respect to the subject matter. The next contention raised by
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the learned Senior Counsel for the appellant is that the suit for
mandatory injunction is not maintainable on account of the long
delay in filing the suit after the termination of the license. Ext.A1
is the last Licence Agreement executed between the plaintiff and
defendant which is dt 01.07.2005 and the period expired on
31.05.2006 on completion of eleven months. Thereafter no
licence agreement was executed between the parties. The
defendant continued occupation as per the terms and conditions
of the Ext.A1 licence Agreement. The license arrangement was
terminated only as per Ext.A2 Notice dt. 04.01.2013. The plaintiffs
filed the suit for a mandatory injunction within three months from
the date of issuance of Ext.A2 Lawyer Notice. Hence, it could not
be said that there is a delay on the part of the plaintiff to file the
suit for mandatory injunction. In the decision in Sant Lal Jain v.
Avtar Singh 1985(2) SCC 332, the Hon'ble Supreme Court
specifically held that even if there was some delay, the attempt
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should be made to avoid multiplicity of the suits and the licensor
should not be driven to file another round of suit with all attendant
delay, trouble and expense and that the suit is in effect one for
possession though couched in the form of a suit for mandatory
injunction as what could be given to the plaintiff in case he
succeed his possession of the property, to which he may be found
to be entitled and therefore appellant should not be denied relief
merely because he had couched the plaint in the form of a suit for
mandatory injunction. In the case on hand, admittedly, the
license arrangement originally started in the year 2001. The
plaintiffs filed the suit in the year 2013, and the defendant has
been continuing possession of the plaint schedule premises for
more than eleven years even after terminating the license. Hence
it would be a travesty of justice if the plaintiff is directed to file a
suit for recovery of possession at this distance of time.
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13. The Trial Court, as well as the First Appellate Court, have
entered a specific concurrent finding that the arrangement
between the plaintiff and the defendant is that of a license and not
a lease. There is no perversity in the said finding. No substantial
question of law arises in the matter. Accordingly, this Regular
Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
