S.K. Gupta, J.
1. Heard Mr. A.V. Gupta, learned Senior Advocate with Mr. Y.E. Tak, Advocate, for the petitioners, as well as Mr. U.K. Jalali, learned Senior Advocate along with Mr. Rohit Kapoor, for the respondents, in extenso.
2. This batch of Revision Petitioners, arising out of the same judgment and order dated 27.2.2003 formulated by learned Additional District Judge, Reasi, involving identical questions, are being disposed of by a common order/judgment. By the aforesaid judgment, learned Additional District Judge, Reasi dismissed the appeals of petitioners preferred against the order dated 30-12-2002 propounded by Sub-Judge, Katra in declining the plaintiffs applications for grant of temporary injunction in holding that there exists no prima facie case in their favour and vacated the ad-interim orders passed, in consequence thereof.
3. Facts relevant for the disposal of these Revision Petitions put tersely are that the plaintiff/petitioner claimed to be tenants of Dharmarth Trust of Shop No. 4 situate at Adhkuwari paying monthly rent regularly seven years prior to the coming up of Shri Mata Vaishno Devi Shrine Act, 1986 (Governor's Act) subsequently replaced by 1988 Act and under Section 20(3) of the said Act have become the tenants of the Shrine Board located at enroute Holy Shrine from Katra. The shops were constructed by Dharmarth Trust at various places in Katra and the plaintiffs/petitioners are enjoying its possession as tenant of the respondent paying rent against receipt continuously. It is further stated that the plaintiffs/petitioners, however, came to be evicted from the suit shops during the intervening night of 9/10 December, 1994 by the Officers of the Shrine Board with the help of the police forcibly. After being evicted from their respective tenanted premises, the Officers of the Shrine Board further required the plaintiffs to pay the payment of rent through Bank Draft. The shops, which were in occupation of the plaintiffs/petitioners prior to the eviction, stood demolished by the respondents. The plaintiffs/petitioners were thereafter called upon by the Additional Chief Executive Officer of the Shrine Board and offered them shops at Adhkuwari at enhanced rate of Rs. 2,06,000/ per annum in lieu of the premises, which were under their tenancy and had been forcibly demolished by the respondents. It is also stated that he induced the petitioners/plaintiffs to affix the signatures on typed papers which subsequently revealed to be a licence deed. The plaintiffs/petitioners further stated to had no option but to sign the said document for having no other source of income. It was also pleaded that the plaintiffs/petitioners being the tenants of the shops under the Shrine Board could not be evicted from the premises allotted to them as tenants without due process of law. It is also contended that the respondents/defendants retendered the demised shops and offered the same on licence basis. The plaintiffs/petitioners, however, asserted to be tenants under the respondents/defendants on the suit shops and not as licensees in alleging the existence of relationship of landlord and tenants between the parties and claimed legal protection against eviction without adopting in due course of law.
4. In controverting the contention of the plaintiffs/petitioners, the stand taken by the respondents/defendants in their detailed written statement is that the suit shops were allotted by the Dharmarth Trust to the plaintiffs/petitioners on licence basis for the year 196, as is clearly borne out for the year 1997-98 and the year 1996, as is clearly borne out form the notice issued by Dharmarth Trust. This fact is further stated to have been affirmed in the resolution of the Dharmarth Trust's Council, as per Annexure D-3 to the written Statement. However, with the information of the Shrine Board on the passing of the Governor's Act, 1986 and subsequently replaced by Shri Mata Vaishno Devi Shrine Act, 1988. The Plaintiffs/Petitioners became licensees of the respondents. It is further pleaded that the plaintiffs/petitioners voluntarily surrendered the possession of the shops in their occupation as licensees and alternative shops were provided to them on license basis for a period of two years, for which licence deeds dated 10-2-1994 to this effect also came to be executed. The plaintiffs/petitioners were allowed to use the shops as licensees on the payment of licence fee for a period of two years. It is also asserted by the defendants/respondents that the plaintiffs/petitioners being Board's Licensees having been allotted the said shops in the licensed premises were required to surrender the possession on the expiry of licence period. It was also contended by the respondents/defendants that under Section 20(3) of the Act, the tenancy of those persons is protected in respect of the suit shops, who were the tenants of the Dharmarth Trust. It, However, does not protect the licensees into tenants. It is further submitted that the plaintiffs/petitioners are mere licensees and the premises were permitted to be used by them on the payment of licence fee for a period of two years and after the expiry of the licence period, the plaintiffs/petitioners had no right to stay in the said premises and are liable to be evicted.
5. Facts relevant for the disposal of these Revision petitions drawn from the case entitled Om Parkash v. Shri Mata Vaishno Devi Shrine Board, Katra File No. 35 Revision of 2003, put tersely are that in case of Pt. Soha Ram through legal representatives v. S. M. V. D. Shrine Board, the petitioner claimed to have been allotted Shop No. 3 by Dharmarth Trust as tenant. His further claim is that the said shop stood demolished after his eviction on the night intervening 9th/10th September 1994, by the Board. A new Shop No. 3 at Adhkuwari, in alternative was provided by the Board , after execution of document dated 10-9-1994 in this regard.
6. Another case of Pt. Soha Ram through legal representative v. SMVD Shrine Board, (CR No. 36/2003), Shop No. 8 is stated to have been allotted by Dharmarth Trust to the plaintiffs/petitioners as tenants. The petitioners further asserted that on the night intervening 9th/10th September 1994, they were evicted from the said shop by the Board and a new Shop No. 8 in alternative was allotted on the execution of a deed by the petitioner to this effect on 19-9-1994.
7. Similarly, in case Krishan Chand through legal representative v. SMVD Shrine Board (CR No. 35/2003), petitioner/plaintiff is stated to have been allotted Shop No. 7 at Adhkuwari by Dharmarth Trust as tenant. He further claims to have been evicted from this shop on the night of 9th/10th September, 1994 and in lieu of which, new Shop No. 7 at Adhkuwari was allotted by the Board on execution of a deed executed by the Petitioner/Plaintiff in this respect on 16-9-1994. *
8. Consequently upon the commencement of the suit, applications came to be initiated by the plaintiffs/petitioners in the aforementioned suit for the issuance of ad-interim injunction in refraining the respondents from evicting the petitioners/plaintiffs from the demised shops on the basis of specific and categorical assertions made and pleas raised in the plaints. On filing of the demurrer by the defendants/respondents in resisting the plea for temporary injunction on the grounds explicitly delineated therein, the trial court after pursuing the copies of documents relied upon by the petitioners on the and hearing their debate, held that no prima facie case is made out fro granting interim injunction and dismissed the application vide order dated 30-12-2002, which stood affirmed in appeals before the learned Additional District Judge, Reasi on 27-2-2003 and penultimately has become the subject matter of challenge in revision before this Court.
9. The questions involved in all these cases being common, factually and legally, the facts asserted therein and then plea and documents placed on record by all the plaintiffs, the petitioners herein, had been identical and similar. *
10. It is well settled that the granting of ad-interim injunction is squarely within the discretion of the court, but the discretion has to be exercised by the court reasonably and in accordance with the sound judicial principles. The principles which govern the exercise of discretion are that the party claiming ad-interim injunction should establish that it has a prima-facie case; that if it is not granted it is likely to suffer a greater mischief and that interference by the Court is necessary to protect it from an irreparable injury. As a matter of fact the circumstances under which temporary injunction may be granted have by now been more or less crystallized. It is now well settled that the court has power to grant injunction even in circumstances not covered by Order 39 CPC and it is well settled that inherent powers of the court can be utilized for issuing temporary injunction but it should not be either to nullify a statutory provision or to bye-pass what is expressly provided. It is true, as was examined by the Supreme Court in Manohar Lal Chopra Vs Ram Bahadur Rao Raju Seth Hiralal, AIR 1962 SC 527 that provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. Therefore, the situations which are not dealt either expressly or impliedly by the provisions of the Code, the court is not rendered powerless and inherent powers are declared under Section 151 of the Code of Civil Procedure an always be resorted to meet the situation and ends of justice. Further the provisions of Order 39 Rule 1 CPC contemplates that case for interim injunction is to be proved by the affidavit or otherwise. The expression 'or otherwise' means that allegations made in the application can 'be proved not only by affidavit but also by documentary and oral evidence. Thus, what is deducible from the above is that the existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction.
11. The main thrust of the plaintiffs-petitioner's contention is that prior to the coming into operation of Mata Vaishno Devi Shrine Act, 1986 (Governor's Act) Subsequently replaced by the Act of 1988, the plaintiff of each suit was tenant of the demised shop in his occupation under the Dharmarth Trust on annual rent paid to the office of the Trust, against the receipts issued by the said Trust from time to time. Even after coming into force of Mata Vaishno Devi Shrine Act, 1988 the status of the plaintiff became tenant of the Shrine Board under the provisions of Section 19(3) of the Act and since then they are occupation of the premises (Even an alternative accommodation provided after demolition of the shops forcibly as tenants). The plaintiffs-petitioners to support this contention have placed reliance upon Circulars issued by the Shrine Board demanding rent from the plaintiffs-Petitioners and receipts issued mentioned the rent receipts. It was further pleaded by the plaintiffs in all the suits that in the night intervening 9/10th Sept. 1994, the Officers of the Shrine Board with the help of the local police evicted them assuring alternative accommodation for their resettlement in the business. That after their forcible eviction and demolition of the pre-occupied accommodation, the delivery of the possession of the present shops alongwith the appurtenants were made available as alternative shops in lieu of the premises under their tenancy under the Dharmarth Trust, which stood demolished by the officers of the Shrine Board forcibly, whereas the stand of the respondents on the other hand is that the plaintiffs/Petitioners being licensees under the Dharmarth trust having voluntarily surrendered the possession of the earlier shops, were allowed to occupy the premises on license only. In sustenance of this contention reliance has been placed on the licence deed executed to this effect. It is further stated that the plaintiffs-Petitioners were allowed the user of the shops for a period of two years on licence basis in pursuance of Licence Deeds executed on 10-9-1994 in most of the cases , which resulted into a new arrangement of which the plaintiffs-petitioners were fully aware and conscious as regards the terms and conditions of the licence deeds. It was further submitted by the respondents that since the provisions of Section 19(3) relied upon does not protect the plaintiffs, no prima facie case is made out for grant of injunctive relief. A tender notice issued by the Dharmarth Trust to allow the user of its shops located at Devi Trikuta Ji clearly and ambiguously demonstrate about the grant of a licence in respect of the shops at Vaishno Devi. The document tender notice clearly negatives the plea taken by the plaintiffs-Petitioners to be the tenants under the Dharmarth Trust. Section 20(3) of the Act protects the tenancy of only those persons who are tenants under Dharmarth Trust and does not even protect the license into tenancy. The status of the plaintiffs-Petitioners further deducible from the plenary reading of the tender notice and also the circular of the Dharmarth Trust is that of a mere licensee of the Dharmarth Trust. After the shops in possession of the plaintiffs were demolished in September 1994, it is not denied that the shops are allotted to them by the defendants/respondents on execution of licence deeds, permitting the user of the shops for a period of two years on payment of licence fee in the mode provided explicitly in the deed. As pleaded by the plaintiffs-Petitioners that they were the tenants under the Dharmarth Trust and assuming but not admitting to be correct that whatever they say about their status with regard to their relationship qua the suit shops in their possession with Dharmarth Trust, that relationship ceased after the surrender of the possession of the shops in September, 1994 in lieu of which alternative accomodation/shops were provided to them on execution of licence deed on 10-9-1994 and resulted into existence of new arrangement between the parties.
12. In determining whether an agreement creates between the parties the relationship of the landlord and tenant or merely that of licenser and licensee the decisive consideration is the intention of the parties. The parties to an agreement, cannot, however, turn a lease into a licence merely by stating that the documents is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In absence of any formal document the intention of the parties may be inferred from the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the premises. Thus, where the agreement is merely for the use of the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease.
13. It is pertinent to point out that both the Courts below Viz the trial court and the 1st Appellate Court having held the key document to demonstrate the transaction between the plaintiffs and the defendants qua the suit shops appeared to be a licence and not lease and having not diverge in their conclusions, long arguments have been hopefully addressed to help me to designate the contract with certitude for lease or license. The plaintiffs-Petitioners pleads status and protection of a tenant, whereas the respondents claim the agreement to be a license. The decision of course depends large and having not diverge in their conclusions, long arguments have been hopefully addressed to help me to designate the contract with certitude fro lease or license. The plaintiffs-Petitioners pleads status and protection of a tenant, whereas the respondents claim the agreement to be a license. The decision of course depends largely on the documents being lease or a licence. The license is a personal right granted to a person to do something upon immovable property of the granter and does not amount to creation of interest in the property itself, It is purely a permissive right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is, therefore, revocable except in certain circumstances expressly provided in the Act itself. The licence has no other effect than to liberty upon the licensee to go upon the property which would otherwise be unlawful. Despite the statutory definition of 'licence' in Section 52 of the Easements Act and the definition of 'lease' in Section 105 of the Transfer of Property Act, the problem of telling one from the other, particularly in marginal cases has not been easy and the courts have therefore, laid down tests to help the determination of the problem. The Apex Court in Associated Hotels of India v. R.N. Kapoor, AIR 1959 S. C 1262 while dealing with the proposition held as under:
'The following propositions may, therefore, be taken as well established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form;(2) The real test is the intention of the parties-whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease, but if it only permits another to make use of the property of which legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie he is considered to be tenant, but circumstances may be established which negative the intention to create a lease. '
14. It therefore, remains to be said that whereas lease creates an estate in the premises an estate that is heritable, a licence does not. Licensee gets only a personal right to enjoy the property without transfer of any right to him and it comes to an end with his death, or earlier at the sweet will or even at the caprice of the owner once the latter expresses his intention to terminate it. In other words, unlike a tenant, licensee never had and does not have juridical possession. This is apparent from the very definition of 'licence' in Section 52 of the Easement Act, 1882, as being the grant of a mere right to o upon the property of another something which would in the absence of such right, be unlawful. This is, needed one of the essential characteristics that distinguish a licence from a lease. 'Another guiding principle which appears is well settled is that the substance of the document rather than the form in which it is couched be looked into for determining the character of relationship established by it. The licence is a precarious interest and not a fixed and settled interest. It cannot be said to be a right in property. In the case of a licensee, there is a clear obligation on his part to remain in 'occupation of the property only till such time and till such period for which he has been permitted by the licensor to occupy the premises. After the termination of the licence, the licence is under a clear obligation to surrender his possession to the owner and to continue to remain which otherwise would be unlawful.
15. Adverting to the tender notice and the agreement stated to have been executed between the parties, after the plaintiffs-Petitioners were provided the alternative accommodation for their re-settlement in business in September, 1994, Mr. U.K. Jalali, learned counsel appearing for the respondents submitted that both the key documents in unambiguous terms indicate about the grant of licence in respect of the shops provided by way of alternative accommodations, after having voluntarily surrendered the possession of shops earlier in occupation of the plaintiffs of which they were licensee under the Dharmarth Trust. It is further submitted that there-after the plaintiffs were allotted the shops and allowed user of the shops for a period of two years on licence basis on execution of Licence Deed. On a plain reading of tender notice, it is clearly discernable that the status of the plaintiffs-Petitioners was that of a mere licensee of the Dharmarth Trust. After the shops in possession of the plaintiffs were demolished and new shops came to be allotted by the defendants-respondents to the plaintiffs/petitioners, they had executed the licence deeds dated 10-4-1994 in permitting for its user for two years on payment of licence fee as agreed to be payable in instalments and reflected in Clause 2 of the said lease deed. It is further elicited from Clauses 8 to 16 of the lease agreement the mode and manner in which the property is to be used by the licensee and on certain terms and conditions indicated therein all these covenants in the agreement in unequivocal terms make it explicit that the property remains in possession and control of the owner and the agreement will operate as a licence alone.
16. As debated by Mr. A.V. Gupta, learned counsel appearing for the plaintiffs-Petitioners who were the tenants of the Dharmarth Trust and after allotment of alternative accommodation, their status did not change, assuming but not admitting that the petitioners were tenants of Dharmarth Trust, but that relationship caused after the surrender of the possession of the shops and the new agreement came into existence on the execution of a Licence Deed dated 10-9-1993 on the basis of which the shops were allotted to them. The contention raised by Mr. A.V. Gupta, therefore, that the plaintiffs-Petitioners are tenants of the demised premises cannot be said to be in accord and with the substance of the documents, admittedly executed between the parties in pursuance where of or in lieu of allotment of the said premises came into existence by any stretch of reasoning.
17. It was next contended by Mr. A.V. Gupta, learned counsel appearing for the plaintiffs-Petitioners that the Circulars issued by the Shrine Board from time to time demanded rent from the tenants and not any licence fee, which clearly established that the plaintiffs-Petitioners are tenants for all practical purposes and their status cannot be converted from 'tenant' to 'licensees' As is clearly gatherable from the recitals in the agreement that the shops allotted were allowed to be used in a certain way and on certain terms by the allottees so long as they continued, exhibit the intention of the parties while creating a document and will operate as a licence. The use of the expression 'rent' in the receipts will not alter the essential character of the deed and the nature of transaction because in general and wider sense to mean payment for use and occupation of the demised premises by the licensee. In case of a written document, the status of the parties emanate from its substance. I do not find any substance in the contention raised by Mr. A.V. Gupta being neither legally sound nor factually acceptable in view of the material gathered on the record.
18. It was further contended by Mr. A.V. Gupta, learning counsel appearing for the plaintiffs-petitioners that the prima facie case does not mean a case to be proved to the hilt. All that the plaintiffs-Petitioners are required to prove is that he has a triable case. Undoubtedly, the first principle governing the application for temporary injunction is that the applicant must show that he has a prima facie case. It is well settled that the power conferred upon the court to grant an injunction which is in the nature of equitable relief is to some extent is discretionary. The grant of injunction is a serious matter and the courts should always take good care in granting injunction only in those cases such an injunction is essential. The court further has to satisfy that non-interference by the court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury. This is the trite law for grant or refusal of injunction.
19. It is significant to point out that a licensee, who after the expiry of the period of licence has not discharged his legal obligation to restore the possession of the property to the licensor, his further continuance to use the premises would be unlawful. In such event there exist no enforceable right. The existence of a legal rights and its infringement being a pre-condition for the grant of interim temporary injunction, the plaintiffs-Petitioners after the expiry of the licence by efflux of time do not have any right to remain in possession and ask for injunction. The plaintiffs-Petitioners, therefore have not succeeded in making out a prima facie case to justify the issuance of temporary injunction as prayed for on the basis of material available on record.
20. After taking conspectus of facts and circumstances discussed above, I do not find any irregularity or illegality in the order impugned, prepared by the trial court and confirmed by the 1st Civil Appellate Court, inviting interference in this revision petition. The revision petitions being without any merit are hereby dismissed. The costs shall abide the result throughout.
21. Any observations made hereinabove, however, shall remain confined to the disposal of these revision petitions, having no merit of the cases. The interim direction, if any, shall stand vacated in resultant thereof. However, ten days time is allowed to the petitioners to seek remedy available to them in accordance with law. In the meanwhile, parties to maintain status-quo as existed on today.