R.G. Vaidyanatha, J.
1. This is a suit for declaration and permanent injunction filed by the plaintiffs. The defendant has contested the suit by filing written statement. Issues were framed. Oral evidence was recorded on Commission. Two witnesses have been examined by the plaintiff and two witnesses on behalf of the defendants. Lengthy arguments were addressed by the respective Counsel of both the parties.
2. Plaintiffs case is as follows:
Plaintiff is a Company which is running hotels at different places including the Hotel Oberoi Towers at Nariman Point, Bombay. On the mezzanine of the ground floor 15000 sq. ft. was given to the defendant on Leave and Licence basis as per licence Deed dated 27th December, 1974 for a period of 12 years under which the defendant had agreed to give loan of Rs. 30 lacs to the plaintiffs. The Licence Fee was fixed at Rs. 60,000/-, which has to be adjusted towards the said loan. Well before the expiry of the period of 12 years of the licence period, the plaintiff wrote the letter in April 1986 to the defendant to vacate the premises on the expiry of 12 years. Then the defendant wrote a letter dated 8th July, 1986 to the plaintiffs seeking renewal of the Deed for 12 more years. Plaintiff has rejected the request for renewal. The defendant was called upon again to vacate the premises on the date of the expiry of the licence period. The plaintiff went on pressing the defendant to vacate the premises. Subsequently, the defendant wrote a letter dated 22nd July, 1989 stating that the Bank will not vacate the suit premises. Then there was further exchange of letters and notices between the parties. Fire broke out in the plaintiffs' Hotel including suit premises. Then defendant vacated the suit premises. Then subsequently, the defendant wrote a letter to the plaintiff to give back possession at the earliest but the plaintiffs' contention is that since the licence period has expired, the defendant has no right to ask for possession of the suit premises. Then defendant filed a suit in this Court in Suit No. 2735 of 1990 for possession of the suit premises under section 6 of the Specific Reliefs Act. A concession was made on behalf of the plaintiff in that suit that the plaintiff in that suit had been dispossessed as alleged in the plaint of that suit and this concession was made with prejudice only for the purpose of that suit. Then, after hearing both the parties, this Court decreed that suit by Judgment dated 6-11-1990. Inspite of that decree, the plaintiff is in continuous active possession of the suit premises. It is alleged that defendant has no right to use or occupy the suit premises. After expiry of the licence period the defendants occupation in the suit premises was of a trespassers and this position was neither agreed nor acquiesced by the plaintiffs at any time. Hence the suit is filed for declaration that the defendants have no right whatever to occupy the suit premises and that plaintiff is exclusively entitled to the same; for a declaration that the decree dated 6-11-1990 in Suit No. 2735 of 1990 is inoperative and incapable of execution except regarding the moveable properties; for an order of permanent injunction to restrain the defendant from executing the said decree dated 6-11-1990 except regarding movables.
3. The defence is as follows:
It is admitted that in 1974 the plaintiffs approached the defendant bank for a loan and accordingly, the defendant gave loan of Rs. 30 lacs at that time, on the request of defendants, the plaintiffs gave the suit premises to the defendant on licence for a period of 12 years subject to payment of licence fee or compensation of Rs. 60,000/- per month. The loan amount has been adjusted out of the licence fee and it is fully repaid. Then there is a reference in the written statement to several clauses of the licence Deed including a clause for renewal. It is stated that the defendant exercised its option for renewal of the period for a period 12 years. The plaintiff expressed unwillingness to renew the leave and licence agreement. The plaintiff has not been encashing the cheques sent by the defendant towards licence fees. It is stated that after the fire broke out on 12th April, 1990, the defendant wanted to keep the damaged furniture, articles etc., in the same position for the purpose of examination by the Insurance Surveyor but the plaintiffs took the law in its own hand and forcibly removed the defendants furniture articles etc., from the suit premises. It is alleged that the plaintiffs unlawfully and forcibly dispossessed the defendant from the suit premises. Exchange of letters between the parties is admitted regarding plaintiffs' demand asking the defendant to vacate. Then it is stated without prejudice to those averments, the defendant has a valid and good title to the suit premises. It is stated that on a true construction of the agreement dated 27th December, 1994, it is clear that the intention of the parties was to create a lease regarding the suit premises. Hence it is stated that the transaction is one of lease as could be seen from the terms of the Deed. Then it is further stated alternatively that the defendant had a right to renew the agreement and has exercised their right of option and therefore, the agreement should continue for a further period of 12 years. The suit is not maintainable. The plaintiff cannot seek injunction to restrain the defendant from executing the decree. The relief asked in the plaint relates to the possession of the suit premises and the plaintiffs' claim is one of seeking the relief against a licensee on the ground of expiry of the period of licence. Such a suit is triable exclusively by a Small Cause Court under section 41 of the Presidency Small Causes Courts Act. Hence this Court has no jurisdiction to try the present suit. It is further stated that the actual relationship between the parties is that of a landlord and tenant. Even such a suit between the landlord or tenant can be tried only by the competent Court under the Bombay Rent Act. Even on this ground this Court had no jurisdiction to try the present suit. The plaintiffs cannot maintain a suit of this type unless the plaintiff restores the possession obtained prior to previous suit viz., Suit No. 2735 of 1995 under section 6 of the Specific Relief Act. The plaintiff cannot ask for relief of injunction when they have taken wrongful possession of the suit premises. The person who has taken law into his own hand cannot ask such a relief of injunction. If a suit of this type is decreed then the provisions of section 6 of the Specific Reliefs Act become negative. The defendant has suffered due to the conduct of the plaintiffs for which the defendant has already filed a suit for damages against the plaintiffs in Suit No. 1883 of 1993 in this Court. The defendant was in exclusive possession of the suit premises as a tenant and the defendant is protected by the provisions of the Bombay Rent Act. The defendant is entitled to remain in possession of the suit premises till the defendant's tenancy is validly terminated in a Court of Law. Hence the plaintiff has no right to immediate possession of the suit premises. It is also alleged that defendant has become a tenant of the suit premises by adverse possession. It is denied that the agreement of Leave and Licence and the advance of loan of Rs. 30,00,000/- was a composite transaction. The defendant has every right to execute the decree passed in Suit No. 2735 of 1990. Hence it is prayed that the suit be dismissed with costs.
4. The issues framed in this case are as follows :
(1) Whether this Hon'ble Court has no jurisdiction to entertain this suit in view of the provisions of section 41 of Presidency Small Cause Court Act as contended in para 17 of the Written Statement?
(1A) Whether the suit is not maintainable in law in so far as prayers (b) and (c) of the plaint are concerned for the reasons alleged in paras 19, 20 and 21 of the Written Statement?
(2) Whether the plaintiffs prove that by an agreement of licence dated 27th December, 1974 the plaintiffs had granted licence to the defendants to use the suit premises for a period of 12 years commencing from 27th December, 1974 as alleged in paras 5 and 6 of the plaint?
(2A) If so, whether the said agreement stood renewed for a further period of 12 years commencing from December 1986 by reason of the alleged exercise of option to renew the Agreement as alleged in para 13 of the Written Statement?
(3) Whether the defendants prove that the defendants were and are tenant in respect of the suit premises as contended in paras 17 and 23 of the Written Statement?
(4) Whether the defendants have no right, title and interest in the suit premises?
(5) Whether the plaintiffs are entitled to remain in possession of the suit premises by virtue of their title thereto?
(6) Whether the Decree dated 6th November, 1990 passed by this Court in Suit No. 2735 of 1990, is inoperative and the defendants are liable to be permanently restrained from executing the said decree except in so far as the said decree directs the plaintiffs to hand over to the defendants equipments, records, books of accounts, furniture, articles and other movables belonging to the defendants Bank?
(7) Whether the plaintiffs are entitled to obtain any reliefs against the defendants and, if so, what?
(8) Generally.
Issue No. 1
5. This issue has already been answered in the negative by this Court and I am told that the appeal filed by the defendant is pending before the Appeal Bench.
Issue No. 1(A)
6. Before considering the several issues, it is better to recapitulate the admitted facts and contentions of the parties.
Admittedly, the plaintiff took a vacant land on lease from the Government for a period of 99 years under Lease Deed dated 12-8-1971 Exh. A. The plaintiff has constructed a big hotel which is Hotel Oberoi Tower, on the said land. The mezzanine floor of the ground floor was given by the plaintiff to the defendant for running its international division. The defendant is Syndicate Bank, which is a nationalised bank. It is common ground that the premises were given to the defendant by the plaintiff under a Leave and Licence Agreement dated 27-12-1974, but now the defendant's contention is that the document though styled as a Licence Deed, it in fact creates relationship of landlord and tenant between the parties. The period of license mentioned in the agreement was 12 years. Well before the expiry of 12 years the plaintiff wrote to the defendant to vacate the premises on the expiry of 12 years. Then one more reminding letter was written by the plaintiff to the same effect on 18-4-1986. Subsequently, the bank wrote a letter asking for renewal of the licence, which was rejected by the plaintiff.
Admittedly, fire broke out in the hotel on 12-4-1990.
7. According to the plaintiff, the defendant voluntarily vacated the suit premises and shifted its office to some other building. But the defendant's contention is that plaintiff took wrongful and forcible possession of the suit premises. That is why the defendant filed the previous Suit No. 2735/90 praying for possession of the suit premises under section 6(1) of Specific Relief Act. The present plaintiff contested that suit. However, for the purpose of that suit, a concession was made that the plaintiff in that suit was dispossessed as alleged in the plaint. The parties did not adduce any evidence. Then on hearing both the sides this Court by Judgment dated 6-11-1990 decreed the suit. The present plaintiff who was the defendant in that suit filed an appeal before the Supreme Court. The appeal was heard by two learned Judges, who disagreed about the maintainability of the suit. Then matter was placed before another Bench. In the meanwhile the present suit had been filed by the present plaintiff. The Supreme Court by order dated 21st September, 1994 in Civil Appeal No. 3697/91 disposed of the appeal stating that since the present suit is pending the parties can work out their rights and hence there is no necessity for deciding the said appeal on merits and further directed that the decree in appeal in that suit should not be executed till the disposal of this suit.
8. The plaintiff examined two witnesses. P.W. 1 Mr. J.J. Bhatia, who was the former Administrative Officer in the plaintiff/hotel. P.W. 2 Mr. A.K. Madhok was the former General Manager & Vice President of the plaintiff-Hotel. Both the witnesses have given evidence about the nature of the transaction and they have referred to number of documents.
As against this, the defendant has examined two witnesses. D.W. 1 Mr. K.N. Babu Rajan, Former Officer of the Bank and D.W. 2 Fernandes, clerk in the defendant-bank; have given evidence about some documents and also about possession of the defendant.
I have gone through the evidence of all the four witnesses. For one thing the oral evidence is interested, since the witnesses of both the sides are the former officers of the plaintiff and the defendant respectively. The oral evidence is not helpful in deciding the issues in this suit. There are number of documents which throw light on the disputed issues. I have considered the oral evidence carefully and find that oral evidence is not very helpful for deciding the controversy between the parties.
Now, with this factual background, let me consider the first contention covered by Issue No. 1(A) about the maintainability of this suit. The learned Senior Counsel Mr. Parikh, learned Counsel for the defendant, raised number of points in support of his argument that the suit as brought is not maintainable. On the other hand the learned Senior Counsel Mr. Doctor appearing for the plaintiff contended that the suit is perfectly maintainable and there is no merit in the defence contention that the suit is not maintainable.
9. First contention about the maintainability of the suit is on the ground of want of jurisdiction, which is covered by Issue No. 1. This Court has already held that the suit is maintainable in this Court; as already stated the appeal filed by the defendant before the Division Bench is still pending. The learned Counsel for the plaintiff contended that while deciding Issue No. 1. this Court has also held that the suit is maintainable, which covers Issue No. 1(A) also. While the learned Counsel for the defendant contended that the Court was concerned with only Issue No. 1 and any observation regarding Issue No. 1(A) is only obiter and it is not binding. After hearing both the sides I feel that though the learned Judge was discussing issue No. 1, he has considered the arguments regarding maintainability of the suit covered by Issue No. 1(A) and has given finding that the suit is maintainable. The learned Counsel for the defendant himself has addressed arguments before the learned Judge, by citing authorities and the learned Judge (Justice Dhanuka) by order dated 24th February, 1995 rejected some of the contentions regarding maintainability of the suit, though the learned Judge was considering only Issue No. 1, he has considered arguments addressed by both the sides about the maintainability of the suit and has expressed the opinion. When both the parties had addressed arguments and invited decision from the Court, it is too late in the day to say that the observations of the learned Judge are obiter and are not binding. We are not considering the effect of order of Justice Dhanuka as a precedent, but we have to consider it as an order between the parties and therefore it is binding on the parties. It is well settled that even a wrong order or an erroneous order is binding on the parties to the suit, unless the order is set aside by an appeal Court or any other process according to law. Alternatively, the learned Counsel for the defendant contended that some points regarding maintainability of the suit was not addressed before Justice Dhanuka and no finding is given on those points and therefore, those points can be urged even now. There is no dispute that the points not covered by the order of Justice Dhanuka can be now pressed into service. Since, both the sides have addressed arguments on points covered by Justice Dhanuka's order and also other points, I will give my finding though I hold that order of Justice Dhanuka is binding on the parties, not only on Issue No. 1, but also on other points decided by him.
10. The first and the most important contention urged by the learned Counsel for the defendant is that the present suit for injunction is not maintainable under section 6(4) of the Specific Relief Act. It is argued that under that sub-section the plaintiff's remedy is only to file a suit for possession and not for injunction. It is further submitted that when the defendant has obtained a valid decree under sub-section (1) of section 6, if a suit for injunction is entertained and a decree for injunction is passed, then the provisions of section 6(1) of the Act becomes nugatory. It was therefore submitted that the suit under section 6(4) can never be for injunction, but always it should be only for title and possession. The argument is no doubt attractive. But on deeper scrutiny I find that the argument cannot be accepted.
When a person is dispossessed, then he can file a suit under section 6(1) of the Act for possession provided the suit is filed within 6 months from the date of dispossession . It is well settled that question of title cannot be gone into in such a suit; therefore the defendant of such suit can file a fresh suit for title and possession as mentioned in section 6(4) of the said Act. It is well settled that the remedy to sue in section 6(1) of the Act is a summary remedy. It is not a final Judgment determining the rights of parties. No appeal is provided against such Judgment. The party aggrieved by a Judgment in a suit filed under section 6(1) of the Act has to file a Regular Title Suit as provided in section 6(4) of the Act.
11. Section 6(4) of the Specific Relief Act reads as follows:
'Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.'
This provision is more like a proviso to section 6(1) of the Act. It starts with 'non-obstante Clause'. That means whatever the nature of decree that is passed under section 6(1) of the Act, the aggrieved party has a right to file a regular title suit. This is only an enabling provision to make it clear that any decree or order under section 6(1) of the Act is not final. It may be a case where the suit of the plaintiff is dismissed under section 6(1) of the Act. He can file a suit for possession on the basis of title. If the suit is decreed, then the defendant can file a suit for possession. Since, section 6(4) is in the nature of non-obstante clause; it cannot be said that the suit must be filed only for title and recovery of possession. In such a title suit there can be a claim for damages for wrongful dispossession or wrongful possession. There may be claim for injunction to restrain the defendant from alienating or from demolishing and constructing of a house etc. It cannot be said that a suit under section 6(4) of the Act must be always only for establishment of title and possession. There are number of decisions of various High Courts including this Court which have taken consistent view that such a suit is perfectly maintainable.
12. The earliest decision on this point is a decision of the learned Single Judge of this Court reported in A.I.R. 1922 Bom 216, Mari Doddatamma Markundi v. Santaya Ramkrishna Pai. That was also a case where a plaintiff had obtained a decree for possession under section 9 of the Former Specific Relief Act, which correspondence to section 6 of the Specific Relief Act of 1963. The earlier suit was decreed for possession. Then the defendants of that suit filed a suit for declaration of title and for permanent injunction and also for a declaration that the previous decree is incapable of execution. The suit came to the decreed. The defendant of that suit took the matter in appeal before this Court and raised similar contentions namely that the suit for injunction was not maintainable when he has already obtained a decree for possession in the previous suit under section 9 of the Specific Relief Act. The learned Single Judge who decided that appeal held that the defendant who suffered decree in a previous suit can file a fresh suit to establish his title. Since, he was already in possession, the only further relief he could ask is the relief of injunction to protect his possession. Therefore the High Court held that the second suit for declaration of title and injunction was maintainable and dismissed the appeal.
13. The argument of the learned Counsel for the defendant is that it was a decision under the Old Act and there is some change in the provisions of new Specific Relief Act, and therefore that decision cannot be applicable to the facts of the present case. There is no merit in this submission. The question in the said appeal and in the present suit is one and same namely whether the defendant who has suffered a decree in a summary suit under section 6(1) of the Specific Relief Act can maintain a suit for establishment of title and injunction or he must file only a suit for possession.
Another contention is that in the said Judgment the question whether the provisions of section 6(1) of the Act become nugatory if the suit for injunction is filed under section 6(4) of the Specific Relief Act was not considered and therefore that Judgment is not binding on this Court. In my view even this argument has no merit.
By a harmonious construction of section 6(1) and 6(4) of the Specific Relief Act, we can definitely say that the suit for injunction is certainly maintainable under section 6(4) of the Act. There is no question of making the provision of section 6(1) of the Act as nugatory when the law itself provides that notwithstanding any order under section 6(1) the aggrieved party can file a suit under section 6(4) of the Act. As already stated the suit under section 6(1) is a summary remedy, the Judgment is not subject to appeal. In such a case, if a party is still in possession, he can always file a suit for declaration of title and injunction. Even if he files the said suit, the defendant can execute the previous decree and take possession, unless the plaintiff is able to get the relief of temporary injunction. Whether the relief of temporary injunction should be granted or not depends upon the several circumstances which the Court has to take into consideration. In many cases the Court may refuse to grant relief of temporary injunction to restrain the defendant from executing the decree. If no injunction is granted then the defendant can take possession and then the plaintiff will have to amend the plaint to ask relief of possession. If in a given case the plaintiff has made out a good case and gets an order of temporary injunction to restrain the defendant from executing a decree, then there is no bar to grant a decree for injunction if the plaintiff proves his case.
14. In 1967(1) Mlj 346, R. Gopalkrishnan Pillai v. Venkateshan Pillai, an identical question was raised. It was held that even though the defendant has obtained a decree for possession under section 9 of the Specific Relief Act (corresponding to section 6 of the present Act of 1963) the plaintiff can still maintain a suit to protect his possession without surrendering such possession in pursuance to the previous decree. It is made clear that nothing in the language of the section to take away the remedies available to a person in possession. It is pointed out that the decree under section 9 of the Specific Relief Act is granted in a summary suit and such a decree is liable to be set aside when the substantive suit is filed on the basis of title. In that case it appears that the plaintiff did not get relief of temporary injunction and lost possession during the pendency of the suit and therefore, the suit was decreed for possession. There is a clear finding that the suit for title and injunction is maintainable.
Same view is taken in a case reported in : AIR1972All418 (Division Bench), Chunni and another v. Sullahar and another. There it has been held that the decree under section 6(1) of the Act is no bar for a suit for declaration of title and injunction against the defendant. Then the High Court observed that in a given case whether the temporary injunction to restrain execution of decree should be granted or not is left to the discretion of the trial Court. Hence, after holding that the suit is perfectly maintainable, the matter was remanded to the trial Court to decide the application for interim injunction according to law. The learned Counsel for the defendant placed reliance on a contrary view taken by a single Judge in : AIR1955All64 Parmanand v. Chimnavat, and it has to be stated that this decision has been overruled by the Division Bench in : AIR1972All418 Chunni and another v. Sullahar and another.
15. In : AIR1984Guj66 , Mohd. H. Shaikh v. Batukbai Valjibhai and others, same view is taken. That was a judgment rendered by His Lordship M.B. Shah (as he then was, who is presently the Chief Justice of Bombay High Court), where His Lordship has taken a view that a suit of this type particularly for title and injunction is maintainable. Even in that case, similar argument was addressed that the provisions of section 6(1) of the Act would become nugatory or frustrated if suit of the present nature is entertained. His Lordship has also mentioned that in a given case where an order of temporary injunction may be granted or not is a different issue and it has no bearing on the question of maintainability of the suit. Hence, His Lordship set aside the order of the trial Court, which had rejected the application for temporary injunction on the ground that the suit is not maintainable and remanded the suit to the trial Court to consider the application for temporary injunction on merits.
In A.I.R. 1955 Tri (13), Gurga Deo v. Satishchandra. It was held that the suit of this nature is perfectly maintainable, where the plaintiff had asked for declaration of title and for permanent injunction though there was an earlier decree in favour of defendant under section 9 of the Old Specific Relief Act.
In : AIR1974All69 , Jamaluddin and others v. Asimullah, a Division Bench of the High Court held that the suit of the present nature is maintainable.
It is therefore seen that the High Courts of Bombay, Madras, Allahabad, Gujarat and Tripura have taken the view that the suit of this nature is perfectly maintainable.
As against this the learned Counsel for the defendant relied on two authorities. One is reported in : AIR1955All64 , Parmanand v. Chimavat. It was rendered by a Single Judge, but the same is no longer good law since it has been overruled by Division Bench of the same High Court which is reported in : AIR1972All418 , which I have already considered above.
The other decision is one reported in Laxmichand v. Saraladevi; No doubt the said decision supports the stand of the learned Counsel for the defendants that the suit of this type is not maintainable. With great respect I am unable to subscribe to this view. I have already pointed out how section 6(4) is an enabling provision with a non-obstante clause and there is no legal bar to file a suit for injunction or other reliefs. I have also shown how different High Courts have taken view consistently that the suit of this type is maintainable.
In my view the suit of this type is perfectly maintainable. The question whether temporary injunction should be granted to restrain the defendants from executing the decree or not depends upon the facts and circumstances of the case. In the present case, that difficulty does not arise, because the defendant cannot execute the decree in view of the order passed by the Supreme Court in the appeal filed by the present plaintiff against the previous Judgment of this Court. The Apex Court has observed that the previous decree shall not be executed till the disposal of the present suit.
The next objection to the maintainability of the suit is one under section 47 of the Code of Civil Procedure. It is argued that since the relief asked is to restrain the execution of the decree, it cannot be urged in a separate suit, but it must be pleaded in the execution proceedings under section 47 of the C.P.C. and therefore, present suit is barred by the provisions of section 47 of C.P.C. In my view there is no merit in this argument.
A decree passed under section 6(1) of the Specific Relief Act is not final. It is not subject to appeal. It is a summery remedy and such a decree is liable to be set aside in title suit under section 6(4) of the Act and the law itself says that the decree under section 6(1) is not final, but it is subject to the result of title suit filed under section 6(4) of the Act. The argument that the suit is not maintainable has no merit. If the suit is maintainable and the plaintiff is still in possession, he can still ask the relief of injunction to protect his possession or to restrain the execution of the decree. I have already pointed out by referring to number of decisions that such a suit for declaration of title and for permanent injunction is maintainable. It is not a case where the plaintiff is objecting to the execution of the decree within the meaning of section 47 of C.P.C. Here injunction is asked to restrain the execution of the decree on the ground that the plaintiff is in possession on the basis of title and that the defendant has no right to claim possession. To such a suit section 47 of C.P.C. is not applicable.
Another contention urged is that the relief of injunction cannot be granted in view of sections 38 and 41 of the Specific Relief Act.
Since I have already held that a suit for declaration of title and permanent injunction is maintainable and referred to many decisions, which have taken consistent view, the argument that permanent injunction cannot be granted under section 38 of the Specific Relief Act has to be rejected.
16. As far section 41 is concerned, sub-clause (a) is not attracted, since there is no judicial proceedings pending when the present suit was filed. If at all, sub-clause (b) is attracted, which says that the Court should not grant an injunction to restrain a person from prosecuting any proceedings in a Court. The argument is that if relief of injunction is granted in this case, it will prevent the defendant from filing a case for executing the decree. No Court will grant an injunction to restrain the other party from executing a lawful decree.
In my view, though the argument has some force, regarding suits generally, it has no merit so far as a suit filed under section 6(4) of the Specific Relief Act. This is a special procedure provided by the statute. The law is that the decree obtained under section 6(1) is a summary order and not a final one, but it is subject to a title suit filed under section 6(4) of the Act. I have already held that such a suit is maintainable, since a decree under section 6(1) is not final and subject to the result of decree in a title suit, filed under section 6(4) of the Act. There is no harm to grant a decree provided the plaintiff is still in possession. In a given case, whether injunction should be granted or not depends upon the peculiar facts and circumstances of the case, the conduct of the parties equities etc. Whether in the present case the plaintiff should be granted relief of injunction or not will be considered at a later stage. But suffice to say that the suit for injunction is maintainable. In fact, the learned Counsel for the defendant cited some authorities on the point that the Court should not grant injunction to restrain the execution of a decree of co-ordinate jurisdiction. There is no dispute so far as decrees passed in other suits, but so far a decree is passed under section 6(1) of the Act different consideration applies. Reason is that it is a summary procedure and summary remedy and it is subject to result of the title suit under section 6(4) of the Act. Section 6(4) starts with a non-obstante clause. Therefore, notwithstanding a decree passed under section 6(1) of the Act, a plaintiff can agitate his title and get the possession or injunction or any other relief which he is entitled to. Though in normal circumstances the Court will not grant injunction to restrain the execution of a valid decree for which no authority is necessary, it does not apply to special suits filed under section 6(4) of the Act. Hence it is not necessary to consider some of the decisions relied on by the learned Counsel for the defendant about the powers of the Court to grant relief of injunction to restrain the execution of decree generally and those decisions are not in suits filed under section 6(4) of the Act or Injunction asked in respect of a decree under section 6(1) of the Act.
17. The argument about maintainability of the suit under section 34 of the Specific Relief Act does not arise in view of my finding that the present suit asking for relief of title and injunction is maintainable. What was argued was that if the relief of injunction cannot be granted, then a suit for bare declaration of title is not maintainable under section 34 of the Specific Relief Act. But in view of my finding that the suit for declaration of title and injunction is maintainable, section 34 of this Specific Relief Act is not attracted.
The learned Counsel of the defendant placed strong reliance on the decision of the Apex Court reported in : AIR1989SC2097 , Krishna Ram Mahale (Dead) by his LRs. v. Mrs. Shobha Venkat Rao, and contented that in view of the observations of the Apex Court a suit of the present type is not maintainable. That was a dispute between a Licensee and the Licensor. According to the facts of that case, even before the expiry of the licence period, the licensor took forcible possession of the licensed premises. Then the licensee filed a suit for possession, suit came to be decreed. It was argued before the Apex Court that since, the license period has subsequently expired, the plaintiff has no right to claim back possession of the licensed premises. The Apex Court has observed that a person in settled possession is entitled to be in possession till he is evicted in due course of law. The Apex Court observed that in view of the conduct of the contesting defendant it is not a fit case for the Supreme Court to exercise discretion in granting Special Leave under Article 136 of the Constitution of India. It was pointed out that the contesting defendant had taken possession unlawfully and he made every attempt to retain the possession. It was pointed out that even after the appeal was dismissed by the Division Bench of the High Court, in stead of complying with the decree or filing an appeal in the Supreme Court, he chose to file a suit which can be described as bogus. Having mentioned about the conduct of the contesting party, the Apex Court observed that it was not a fit case for entertaining the appeal under Article 136 of the Constitution. The Supreme Court has no where observed that a suit for injunction under section 6(4) of the Specific Relief Act does not lie. The Supreme Court was concerned with the conduct of the contesting defendant in that suit and commented on the dilatory tactics adopted by him and about having taken possession of the licensed premises before the expiry of the period and other circumstances and therefore, declined to grant special leave. The maintainability of the second suit was not an issue before the Supreme Court. The Supreme Court has referred to number of attempts made by the appellant to retain possession and in that context observed that he filed one more bogus suit to retain possession obtained unlawfully. Hence, in my view, in a given case the Court may refuse to grant the relief of injunction having regard to the conduct of the plaintiff and other circumstances. I will consider separately whether the plaintiff in this case, took possession wrongfully and whether it is entitled to relief of injunction or not.
In my view none of the arguments of the learned Counsel for the defendant about the maintainability of the suit appeal to me, hence all the contentions are rejected. Issue No. 1(A) is answered in the negative.
Issues Nos. 2 & 3
18. These are two major issues which were pressed into service on behalf of the plaintiff and the defendant respectively. According to the plaintiff the suit transaction is one of leave and licence. The defence is that it is a case of relationship of landlord and tenant between the parties. In other words, the dispute is whether it is a license as alleged by the plaintiff or a lease as alleged by the defendant. Both the learned Counsel have placed reliance on number of authorities in support of their rival contentions. The oral evidence of P.W. 1 and P.W. 2 on the one side and that of D.W. 1 and D. W. 2 on the other do not help us in any way to decide this point. There are number of documents exchanged between the parties. Then there is license deed itself. The Court has to consider the contents of the license deed and number of documents produced by both the sides and pleadings of the previous suit to find out the true nature of the suit transaction. Before going to consider the evidence produced by the parties on this point, let me straightway consider the question of law that is involved.
A lease according to section 105 of the Transfer of Property Act is a transfer of an interest in immoveable property. On the other hand a licence as defined in section 52 of the Easement And Licence Act is a permission given by one to the other to make use of a immoveable property. In many cases the distinction between a licence and a lease is very thin. The settled position is that the Court has to take into consideration the written document between the parties, the surrounding circumstances, the conduct of the parties to find out the real intention of the parties about the nature of the transaction namely whether they intended to create a license or lease.
Since law bearing on the point is directly covered by decisions of the Supreme Court and this Court, it is not necessary to refer to English decisions or the decisions of other High Courts.
The learned Counsel for the defendant seriously contended that irrespective of the contents of the document, the intention of the parties and particularly exclusive possession of the property must be taken into consideration to find out the nature of the transaction. He placed reliance on some authorities.
In : [1968]2SCR548 , Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, where the hotel had given some rooms to some shops. The question was whether it was a lease or license. It is pointed out that exclusive possession of the property is important, but not conclusive. On facts it was held that it is a case of lease.
In : [1974]2SCR530 , Qudrat Ullah v. Municipal Board, Bareilly, it was a case of shop and shed and road and path in a municipal market. On facts it was held that as far shop and shed are concerned it was a case of lease and as far as road and paths are concerned it was a case of license.
In : [1989]3SCR626 , Capt. B.V. D'Souza v. Antonio Fausto Fernandes, Again it was held on facts that it was a case of lease. It is observed that to find out the nature of document, substance of the document must be preferred to form; that exclusive possession of the party is relevant but not conclusive. Then the other test is whether the document creates any interest in the property.
In : [1960]1SCR368 , Associated Hotels of India Ltd. v. R.N. Kapoor; It was again a case of room in a hotel. It appears that the room had been given for running business of hairdresser. The question was whether it was a case of license or lease. No doubt the document had been written as a licence deed. The Supreme Court analysed the terms of the deed and posed a question whether as to what is the substance of this document. Then it was held on facts that it was a case of lease though the document was styled as a license deed. It was further pointed out that the intention of the parties is very clear and it shows that it was a case of lease. As far as exclusive possession is concerned, it was observed that prima facie it shows that the person is a tenant, but circumstances may be established to negative the intention to create a lease.
In 67 B.L.R. 452, Miss Aninha D'Costa v. Mrs. Parvatibai M. Thakur; It was again a case of license or lease. Though the document was styled as a license deed, on interpreting the document and taking into consideration the circumstances of the case and the conduct of the parties, it was held that it was a case of lease. Another circumstances which was taken into consideration was that the parties were strangers and it was not a case of one party accommodating the other, but it was a case of giving property to earn money after giving advertisement in newspaper and hence it was held to be a lease. The Court also took into consideration the object of the law. Since, Bombay Rent Act was in force, there was every chance of a landlord and tenant taking undue advantage and giving property on lease or sub-lease, but creating documents in the form of license deed. It was again a decision based on the peculiar facts of that case. It is also pointed out that it was a case of renewal of the license at the option of the licensee.
In 68 Bom.L.R. 400, Sohanlal Naraindas v. Laxmidas Raghunath Gadit; It is pointed out that the intention of the party is relevant to decide whether a transaction is lease or license. It is subsequently pointed out that mere exclusive possession is not sufficient. It was again a case of giving a property for consideration of money. On facts it has held that it is a case of lease. This decision was carried in appeal before the Supreme Court, which is reported in 74, Bom.L.R. 145: The Apex Court pointed out that defendant had been given exclusive possession and plaintiff had not reserved possession of any part of the premises or a right of entry therein. Except monetary consideration there was no other reason for the transaction. It was a case of deliberate camouflaging the real transaction by writing the document as license and hence on facts it was held that it was a case of lease.
In 78 Bom.L.R. 195, M/s. Mohan Sons (Bombay) Pvt. Ltd. v. Lady Sonoo Jamsetji Jeejeebhoy; it was a case where the landlord had filed a suit for eviction of the tenant on the ground of sub-lease. Tenant denied the sub-lease, but alleged that he had given the property to his licensee. On facts the theory of license was rejected and it was held to be a case of sub-lease. In my view the decision is based on the peculiar facts of the case.
In : AIR1980Bom333 , Balvantsinghji Anand v. Bhagwantrao Ganpatrao Deshmukh, it was held that it was a case of lease on the facts of the case.
19. In some of the decisions mentioned above there is reference to the attempts made by unscrupulous landlords to evict a tenant and to take a license deed in order to get over the provisions of Bombay Rent Act. More over the Court can take judicial notice that the tenant will be at the mercy of the landlord and the tenant is eager to get some place for his residence, in such a helpless situation the landlord can dictate terms and ask the tenant to execute a license deed or otherwise he will not give him the possession of the premises. A tenant being helpless will have to execute whatever document the landlord wants. That is why in many decisions the Court has to go behind the document to find out the true nature of the transaction and the intention of the parties. Bearing law laid down in the above decision we will have to examine the terms of the document in question in the present suit, the circumstances of the case and the conduct of the parties to find out as to what was the intention.
As against this the learned Counsel for the plaintiff has also invited attention of the Court to number of decisions of the Apex Court.
The latest decision on the point is one reported in , Swaran Singh v. Madan Singh. In that case also an identical question arose, whether the transaction was one of lease or license. The Supreme Court pointed out that the nomenclature of the document is license though it was pointed out that it may not be conclusive. The document further recited that the possession and control shall remain with the owner which means that there is no transfer of interest on immoveable property. Though there was a clause that license will not sublet to others, it was held that such a clause is not inconsistent with a license. Then the Apex Court made an important observation in para 5 as follows:
'Where the document is unambiguous, there is no need to travel beyond the document and look at the attendant circumstances together with the intention of the parties.'
That means if the document is ambiguous, then no doubt the Court will have to consider all other relevant points to find out the intention of the parties. It may be possible that in some cases the defendant may plead that due to pressure of the landlord the document was written in a particular manner and he was helpless and the license deed was taken as a device to get over the provisions of the Rent Act, then also the Court may have to go beyond the document to find out the nature of transaction. In the present case, I will presently point out, that the defendant was not a helpless person who was at the mercy of the plaintiff. It is also not a case about that the defendant pleading that due to certain circumstances the license deed was taken as device to get over the provisions of the Rent Act. There is no such plea at all, though the defendant is no ordinary person, but the Syndicate Bank, which is a nationalised bank wholly owned by the Government of India. Hence, there is no question of defendant being at the mercy of the plaintiff or it is a case of helpless tenant who had to succumb to the pressure of an unscrupulous landlord in signing some documents which the landlord may insist.
Another recent decision on the point is the case reported in : AIR1996SC441 , Lilavati Hiranandani v. Usha Tandon. It was a case arising from Bombay. Even in that case the dispute was whether the transaction was one of lease or license. It was found that the document was styled as a license. The document was clear. It was pointed out that Bombay Rent Act was in existence since 1947 and both the parties were aware or deemed to be aware of the prevailing state of law. In spite of this they chose to call the arrangement as a license. The Apex Court observed as follows:
'In our opinion the specific label or nomenclature of the arrangement and the contents of the document should conclude the matter'.
Here again the Apex Court has observed the nomenclature is clear and the contents of the document are unambiguous, then there is no necessity to travel beyond the document to find out the nature of the transaction.
In : [1989]2SCR401 , Provash Chandra Dalui and another v. Biswanath Banerjee and another, it was pointed out that the Court must look at the words used in the contract and if the words are clear there is very little the Court can do about it. If the words are doubtful or the document is not clear then the Court has to consider the intention of the parties by surrounding circumstances etc.
In : [1991]1SCR592 , Puran Singh Sahni v. Sundari Bhagwandas Kripalani (Smt) and others, a similar dispute arose. It was observed that test of exclusive possession is not decisive, if there was an intention to create interest in the property, then it is a lease or otherwise it is a license. That was a case where the document was written as a regular license deed, as in the present case. The Supreme Court observed that there is no doubt that ex facie it is leave and licence agreement for use of the flat. It was contended, as in the present case, that since the defendant is given exclusive possession, it must be held to be a case of lease. It was pointed out that exclusive possession by itself will not amount to creation of interest. It was further pointed out that the intention of the parties to an agreement has to be gathered from the terms of the agreement construed in the context of surrounding, precedent and consequent circumstances. If the intention was to create an interest in the property, then it will be a lease.
20. We may also refer to another decision of the Apex Court in : AIR1988SC1845 , Smt. Rajbir Kaur and another v. M/s. Chokosiri and Co.. In that case the dispute was whether the transaction was a lease or a licence. It has been pointed out that though exclusive possession is a relevant fact, it is not conclusive. It is pointed out that even if there is exclusive possession an idea of license is not necessarily ruled out. It is pointed out that everything depends upon the intention of the parties and there is no single simple litmus test to distinguish one from the other. It is a creation of interest which distinguishes a lease from licence.
In : [1964]6SCR642 Mrs. M.N. Clubwala and another v. Fida Hussain Saheb and others. It is pointed out that intention of the parties has to be ascertained from the contents of the agreement or if there is no formal document, then from the surrounding circumstances and conduct of the parties. It is clearly ruled that even if a person is in exclusive possession, it does not mean that transaction is a lease. But if there is a transfer of interest in property coupled with possession, then it is case of lease.
21. The learned Counsel for the plaintiff also invited my attention to an unreported Judgment of a learned Single Judge of this Court dated 7th April, 1992 in Suit No. 214 of 1975, Mrs. Karuna Manoharlal Ohri v. Vipinbhai U. Sanghani, reported at : AIR1993Bom177 . That was also a case where dispute was whether the transaction was a lease or licence. It is pointed out that apparently document shows that the licensee had no interest in the property though the exclusive possession was given to him and he had a mere right to occupy and make use of the flat. After holding that the defendant was only a licensee, the learned Judge held that since the defendant was occupying the premises as a licensee on the appointed day namely 1st February, 1973, he must be deemed to be a tenant in view of section 15(A) of the Bombay Rent Act. Hence the suit came to be dismissed in view of deemed tenancy as per amended section 15(A) of the Bombay Rent Act.
The plaintiff in that suit carried the matter in appeal before the Division Bench of this Court in Appeal No. 585/92. It is also an unreported Judgment and the copy of the Judgment is placed before me, which is dated 11-2-1994. The Appellate Court agreed with the finding of the Trial Judge that it was a licence only. But still held that in the facts and circumstances of the case, the defendant was not entitled to the protection under section 15(A) of the Rent Act. Accordingly, the appeal was allowed and the suit for possession was decreed.
The defendant in that suit carried the matter to Supreme Court in Civil Appeal No. 2504 of 1994. The Supreme Court by its Judgment dated 8-2-1996 dismissed the appeal, but granted time to the appellant/licensee to vacate premises.
22. From the above decisions relied on by the both the sides we find the main test is as to what was the intention of the parties. Exclusive possession is an important circumstance, but it is not conclusive. The main question will be whether there was transfer of interest in the property in favour of the defendant or not? If there was no transfer of interest then certainly it is a case of licence. The Court has to consider the contents of the agreement between the parties, the surrounding circumstances and the conduct of the parties to find out as to what was the intention of the parties. As pointed out in some of the latest decisions of the Apex Court, if the document is unambiguous then the Court has to look to the substance of the document to find out the nature of the transaction and need not go out side the document. With this background on the point of law bearing on the point, let me analyse the evidence produced by both the parties.
23. Exh. A is a big compilation of documents, which has been marked collectively. The agreement between the parties is at page 45 of Exh. A. It is dated 27-12-1974. It is mentioned in the document that it is an agreement of leave and licence. The defendant is described as a licensee. There is reference to licence fees. The plaintiff has agreed to give the premises on leave and licence basis to the defendant. Therefore the nomenclature of the document is that it is a leave and licence agreement.
It is no doubt mentioned that the licensee includes the successors of the defendant. It was contended that if it is a pure licence then there is no question of using the words successors. It is a usual term in every document and hence that clause does not throw any light on the question of the nature of the transaction.
24. One important clause is that defendant has agreed to give a loan of Rs. 30 lakhs to the plaintiff under a separate agreement and now the defendant bank is giving an option to adjust licence fees towards the said loan.
The oral evidence and the documents produced in the case show that defendant gave a loan of Rs. 30 lakhs to the plaintiff and this has to be adjusted at the rate of Rs. 60,000/- as licence fees. The intention of the parties was not to create an agreement for the purpose of earning money. It was a case of defendant/bank advancing a loan to the plaintiff and the plaintiff/company giving a portion of the premises to the defendant on leave and licence basis. I have already pointed out that in some of the decisions the reasoning in that an unscrupulous landlord may exploit a poor or helpless tenant and therefore may dictate terms and take a document in the nature of a licence just to get over the beneficial provisions of the Bombay Rent Act. Can we say that in this case, the defendant is a helpless and poor tenant, who was at the mercy of the plaintiff and had to sign whatever documents the plaintiff gave it. Can it be said that this is a case of the real nature of the transaction being camouflaged as a licence instead of lease. There is no whisper in the written statement on these two points. It is not defendant's case that out of pressure of plaintiff or being under the mercy of the plaintiff the document was camouflaged as a licence, though the transaction was intented to be a lease/deed. There is no such plea at all in the written statement.
The defendant, as already pointed out, is a nationalised bank, which is wholly owned by the Government of India. It is an instrumentality of the State. It has a separate legal department and assisted by its own solicitors. If at all, it is the plaintiff was at the mercy of the defendant, since it approached the defendant to give loan of Rs. 30 lakh, if at all the defendant could have dictated the terms to the plaintiff and could have refused to sign the document unless it is written in the manner wanted by it. Hence, this is not a case where a poor or helpless tenant is exploited by a mighty and rich landlord or it is not a case where there is plea much less evidence that real lease transaction was camouflaged as a licence deed to get over the provisions of the Rent Act. There is no pleading much less evidence as to why the defendant signed the licence deed with open eyes, if really the intention was to create a lease transaction, then there is no explanation forthcoming from the defendant either in the written statement or in the evidence of D.W. 1 & D.W. 2.
In Clause (1) of the licence deed, the defendant is given licence to use and occupy the licensed premises for the purpose of carrying on the business of bank for a period 12 years.
25. The learned Counsel for the defendant contended that normally a licence will be for a shorter period, but the fact that 12 years period is mentioned, it must be a case of lease. We must bear in mind that the period is mentioned to cover the repayment facility given to the plaintiff under which the licence fees of Rs. 60,000 per month must be adjust towards the loan of Rs. 30 lakhs. Hence longer period is mentioned in order to clear the loan.
If really parties intended that it should be a lease deed for 12 years, it cannot be done by an unregistered document. A lease of immoveable property for more than one year must be by a registered lease deed. The defendant who has a big law department and has assistance of legal experts cannot be said to be not aware of this legal position that there cannot be a valid lease deed for more than one year unless it is registered. The fact that the document is taken as a licence deed by an unregistered document but with 12 years period shows the intention was to create a transaction of licence and not lease. If the parties intented to create lease, the defendant would have insisted for a registered deed.
Next we find that in Clause (2), though there is provision for renewal of the licence, it is at the discretion of the plaintiff. Though the defendant may express his intention to renew the lease, it is left to the discretion of the plaintiff to grant renewal or refuse the same. This condition is consistent with the transaction being one of licence. The fact that the defendant must pay electricity bill and must keep the premises in good condition is consistent both with licence and lease. In Clause 3(iv) the plaintiff has reserved right to send its representative to inspect the suit premises. The defendant has been told in the next clause to use the premises only for its administrative office and no other purpose. Then what ever internal changes should be made like furniture etc. it must be with the written approval of the plaintiff/company.
Then there is a specific condition that defendant should not do anything to invalidate the plaintiff's lease deed dated 12-8-1971. That means both the parties are aware about the lease deed dated 12th August, 1971 and its contents when the licence deed was executed. The lease deed between the plaintiff and the Government of Maharashtra is at page 1 of Exh. A. One of the conditions in the said lease deed is that the plaintiff should not sublet any portion of the premises without the previous written consent of the lessor namely the Government of Maharashtra.
26. Plaintiff has built a very big hotel called Hotel Oberoi on the land taken on lease from the Government of Maharashtra under this lease/deed. The defendant is also aware of condition of the lease deed. In the circumstances the party would not have intended to create a sub-lease, since the plaintiff will run the risk of forfeiture of the lease. Therefore, the probabilities are that the plaintiff had intention to create only a licence and never intended to create a lease transaction.
On the other hand the learned Counsel for the defendant contended that because of this clause that plaintiff cannot sublet, a document in the form of licence was taken as a camouflage to cover the real lease transaction. I would have appreciated this argument if the defendant had taken such a stand in the written statement. The defendant could have pleaded in the written statement that in order to get over the provisions of the Rent Act or to avoid the forfeiture clause in the lease deed a device was made to take a licence deed instead of a lease deed. There is no plea much less evidence on that point. Hence, it is too late in the day to submit such an argument at the time of arguments which is based on neither plea nor evidence. On the other hand I will presently point out that defendant itself has admitted in the previous proceedings that it was a case of licence.
27. Then in Clause 3(xii) it is provided that the defendant should not change the lock of the main entrance door without the written consent of the plaintiff. It is also in evidence that the original key of the main entrance door was kept with the plaintiff and the duplicate key was given to the defendant. These two conditions namely giving key of the main door to the plaintiff and defendant agreeing not to change the lock of the door without the written consent of the plaintiff show that the defendant was given right to use and occupy the premises as a licensee and it was never intended to be a lease transaction.
It is also seen from the deed and also from the evidence on record that lift machine and Air-condition machine are in a portion of the suit premises. The plaintiff's engineers and mechanics are entitled to go to the suit premises at any time to repair the lift machine and to repair air-condition machine. That means the plaintiff had a right of entry for this purpose. This also is consistent with the transaction being a licence. Then the plaintiff has reserved the right of entry to inspect the suit premises at any time during the working hours. Then there is a Clause 7(iii) which shows that the plaintiff shall have full control over the licensed premises subject to use by the licensee for the period mentioned.
Then we come to the most important clause which is Clause 7(i), which reads as follows :---
'This agreement does not create any interest or any other right in favour of licensee in the said licensed premises or any part thereof but it is a mere licence to use the said premises. The key to the main entrance will remain with the company and the duplicate thereof will remain with the licensee and locking arrangement if required to be changed will be changed with the consent of both the parties.'
Above clause clearly shows that the parties agreed with open eyes that the agreement does not create any interest or any right in favour of the licensee, except the right to use the premises.
As already stated we are concerned with a defendant who is the instrumentality of the State and which is a nationalised bank and who was in a position to dominate being a creditor of the plaintiff by loaning Rs. 30 lakhs; if such a defendant who knows or deemed to know the legal position and who has a very big office with a law department and having an opportunity to take legal advice by any senior advocate, signs a licence deed, it is bound by it. There is no explanation by the defendant either in the written statement or in the evidence of D.W. 1 and D.W. 2 as to why they accepted such conditions to be incorporated in the agreement. As already seen the main distinction between a lease and licence is whether there was transfer of interest or not. Here in view of this unequivocal condition, that agreement does not create any interest in favour of the defendant, the transaction can never be called a lease, since it runs contrary to the statutory definition of a lease in section 105 of the Transfer of Property Act. In my view this condition puts an end to the controversy and sufficient to reject the defence of the defendant on this point.
28. In view of the conditions in the licence deed being unambiguous and do not admit any interpretation except that it is licence deed, we need not to go to the other evidence on record in view of the law laid down in the latest decisions of the Apex Court mentioned above. Granting for a moment that in spite of such a deed, the Court can consider the surrounding circumstances and conduct of the parties to find out their real intention, let me refer to some materials on record.
The learned Counsel for the plaintiff pointed out that in number of letters and correspondence the defendant has admitted that it is a case of licence and it is sending licence fee etc. On the other hand the learned Counsel for the defendant contended that in two or three letters of the plaintiff there is a use of word 'lease or rent'. It may be possible that some clerks of the hotel or bank may not know the legal implication of using the word licence, rent or lease etc. Hence, let me not give much importance to the letters or correspondence between the parties, where there may be mentioning of words like licence, rent and lease etc. and it may not be sufficient to come to one conclusion or the other.
In Exh. A at page 70 there is a letter dated 17-9-1984 written by the plaintiff to the defendant stating that the transaction is a licence and the period expires on 31-12-1996, and called upon the defendant to vacate the premises on the expiry of the licence period. Then one more reminder was sent dated 18-4-1986 at page 74. Defendant had received a letter, wrote a reply dated 8-5-1986 (at page 75 of Exh. A) stating that the matter is under consideration and detailed reply will be sent. Then defendant wrote another letter dated 8-7-1986, (page 76) asking the plaintiff to renew the period for 12 years more. If really the transaction was intended to be lease and not a licence, the tenor of the reply would have been that the defendant is a tenant and is protected under the Rent Control Act and it now not vacate the premises. But the reply is that the defendant asked the plaintiff to renew the period for 12 years. The plaintiff promptly sent a reply dated 9-8-1986 at page 78 rejecting the renewal and again called upon the defendant to vacate the premises on the expiry of the licence period on 31-12-1986. Then the defendant wrote another letter dated 22-7-1989 (at page 86 of Exh. A) stating that the Board of Directors of the defendant have resolved not to vacate the premises. That was the earliest chance for the defendant to say that this is a lease transaction and not a licence, and is not going to vacate the premises. There is no whisper of tenancy or lease even in Exh. 86.
28-A. It may be recalled that the fire broke out in the hotel premises on 12-4-1990. This is also an admitted fact that in view of fire the defendant vacated the suit premises except leaving some furniture. Then defendant wrote a letter dated 21-7-1990 (at page 115 of Exh. A) stating that the defendant had temporarily shifted from the suit premises and called upon the plaintiff to allow them to again occupy the suit premises. The plaintiff sent reply as per letter dated 25-7-1990, which is at page 120, stating that the defendant being a licensee having vacated the premises and the licence period has already expired, it has no right to ask for possession of this premises. Therefore in this letter the plaintiff has told the defendant that it has no right of re-entry since it is only a licence and the licence period has already expired. Now let us see what the defendant has to say in reply to that letter. The defendant's reply is at page 125 which is dated 7th August, 1990. The only assertion is that the defendant-bank has not vacated the premises and the plaintiff had taken some action clandestinely and unlawfully. Even in this letter, there is no whisper that the defendant is a tenant and therefore has right to occupy the premises and the transaction is not one of licence as alleged in plaintiff's letter which was under reply. That means even after plaintiff asserted that the defendant is a licensee, the license has expired and defendant has no right of re-entry, there is no denial of licence, much less assertion of lease, in this reply letter dated 7th August, 1990.
Then again plaintiff wrote a letter dated 14-8-1990, which is at page 128 of Exh. A, asserting that the transaction is licence and defendant has no right of re-entry.
Within two weeks after this letter, the previous Suit No. 2735/90 was filed by the plaintiff against the defendant for possession under section 6(1) of the Specific Relief Act on 29-8-1990. The Judgment of the previous suit is at Exh. E (date of filing of the suit is at internal page 5 of the Judgment).
We find that in 3-4 letters the plaintiff has asserted that it is a licence, that licence period has expired and the defendant has no right of re-entry. On receipt of the plaintiff's last letter dated 14-8-1990 the defendant filed previous suit 15 days later on 29th August, 1990. If really the transaction was a lease and not a licence or real intention was to create a lease and defendant had protection under the Rent Control Act as now contended in the present suit, the defendant who filed the previous suit would have contended that it was in possession of premises and it has been dispossessed contrary to the provisions of Rent Control Act and therefore, wants to be put back in possession. That would have been most important thing with the defendant should have pleaded in the previous suit, if really the transaction was one of lease and not licence, particularly when the plaintiff has all along been asserting in 3-4 letters mentioned above that the bank has no right since licence period has come to an end. Now let us see on what ground the defendant filed the previous suit. Only relevant extract of the plaint is produced in this case, and is marked as Exh. G by consent. In para 2 to the plaint in the previous suit, in Exh. G, the bank who was the plaintiff in that suit has pleaded that the hotel agreed to grant to the bank an area of 15000 sq. ft. to enable the bank to carry on their business activities. It is stated that the period of licence was 12 years and licence fee was Rs. 60,000/- per month in respect of the licence premises. In para 4 there is reference to number of clauses of the licence deed. Even the licence deed was produced in that case as Exh. A to the plaint. It is further mentioned in para 6 that though the leave and licence agreement expires on 26th December, 1986, the hotel is unwilling to renew the licence. The hotel is not encashing the licence fee sent by the plaintiff through cheques.
It is therefore seen that in the previous suit filed by the bank for possession of the suit premises there is reference to the licence deed, terms of the licence, payment of licence fees, but there is no whisper about any lease or rights of tenancy. This is particularly so when the plaintiff has already in 3-4 letters prior to that suit asserted that the bank was only a licensee and it has no rights after the expiry of the licence period. In stead of that, the bank comes to the Court and makes a pleading that it is in possession of the premises as license and since it was forcibly dispossessed it wants back the premises. We must bear in mind that the defendant had the assistance of senior lawyers in filing the suit and in arguing the previous suit, one of the senior advocates of the Bombay Bar addressed argument on behalf of the bank in the previous suit. The stand taken was about the terms of the licence agreement etc. and there was no whisper about any lease transaction.
Now let us see what this Court observed in the previous suit. The learned Single Judge, who heard the parties and gave Judgment (Exh. E) has mentioned in more than one place that the common ground was that it was a transaction of licence. In other words, at page 7 of Exh. E, the learned Judge observed that question is whether the licence stands terminated or not? The learned Judge observed as follows:
'In the present case, the plaintiff are claiming possession under a licence.'
Then the learned Judge observed that plaintiff was in settled position under a licence agreement and hence, cannot be dispossessed except in due course of law. That is why that suit came to be decreed. Again at internal page 25 the learned Judge observed as follows:
'In the present case, it is admitted that the agreement dated 27th December, 1974 is a licence agreement.'
After the suit was decreed the hotel carried the matter in appeal before the Supreme Court in Civil Appeal No. 3697/91, which is reported in : 1991(2)SCALE638 . Even in Supreme Court both the parties were represented by senior lawyers. The Bench consisted of Hon'ble N.M. Kasliwal and K. Ramaswamy, JJ. The two Hon'ble Judges disagreed on the question whether plaintiff has to prove juridical possession as on the date of the suit in a summary suit filed under section 6(1) of the Specific Relief Act. Hence, they directed that matter be placed before another Bench for resolving controversy. We have already seen that subsequently the Supreme Court dismissed the appeal allowing the parties to get their rights determined in the present suit, namely, this suit, which had been filed by that time.
What I am no trying to point out is that even before the Apex Court the contention was about the right of the licensee to be in occupation after the expiry of the licence period. I will refer to some of the observations of Hon'ble Justice N.M. Kasliwal to high light this point. At page 36 of the above reported Judgment Hon'ble Lordship Kasliwal mentioned that 'admittedly the bank is a licensee and the period of such licence came to an end on December, 31st of 1986.' Again in para 8, page 36, it is observed 'that it is an admitted case that plaintiff-bank was in possession as a licensee.'
It may also be noted that the bank filed one more suit against the hotel for damages caused to its furniture, records etc. in Suit No. 1883 of 1993 in this Court and the suit is still pending. Even in that suit, which is filed in 1993, during the pendency of the present suit, the plea taken is that the plaintiff-bank is in possession under agreement dated 26th December, 1986. Exh. O is an extract of the plaint. Even in that suit no plea of tenancy or lease was raised in the plaint.
29. The learned Counsel for the plaintiff contended that in view of the bank's admission in the previous two suits that it is in possession as a licensee, it can not turn round and say in the present suit that it was in possession as a tenant and the document was a lease. Both the Counsel referred to some authorities on this point. It was pointed out in : [1967]1SCR1 , Basant Singh v. Janki Singh and others, that admission by a party in a previous plaint, can be used in subsequent suit though other party can show that the admission is not true.
In : [1960]1SCR773 , Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others, where it is observed at para 11 page 105 as follows:
'An admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.'
30. The learned Counsel for the defendant invited my attention to : [1956]1SCR451 , Nagubai Ammal and others v. B. Shama Rao and others, where it is observed that admission is not conclusive. It is clearly stated that what a party himself admits to be true may reasonably presumed to be true.
He also placed reliance on : 1955CriLJ193 , Kalidas Dhanjibhai v. The State of Bombay, where the previous admission was about the legal effect of facts and therefore it was held it does not amount to an admission or estoppel.
31. In my view the question whether the defendant was a licensee or a tenant is a question of fact. The question whether the intention of the party was to create a lease or a licence is a question of fact. If defendant himself pleads in his previous suit that the transaction was one of the leave and licence and that the period is expired, it has been renewed etc., the defendant cannot now turn round and say that the transaction was one of lease. The defendant never pleaded in the previous two suits, that on interpretation of the document it purports to be a licence. The defendant pleaded in the previous suit that it is in possession as a licensee. This is an admission which can be used against the defendant. The defendant can get over this admission if it can show that the admission was made due to mistake etc. No circumstances are placed before me to show as to why such an admission was made and how it can be got over in the present suit. As already stated the defendant was assisted by the Senior Advocates in filing the plaint and in arguing the previous suit and getting a decree, in the absence of any circumstance to the contrary, the admission is binding on the defendant, which means the defendant took the suit premises as a licensee.
32. The learned Counsel for the defendant laid very much stress on the point that defendant was in exclusive possession of the suit premises and therefore, it was a transaction of lease and not a licence. I have already pointed out that though the defendant was given possession of the suit premises, for running its banking office, still under the deed of licence the plaintiff has reserved the right of inspection. The plaintiff has right to send its workmen and engineers for inspection and repair of the lift machine and air-condition machine located in the suit premises. Then the important clause is that 'no interest is created in favour of the licensee' under the deed. These things coupled with the admission in the previous plaint is sufficient to come to the conclusion that what was given to the defendant was a possessory licence and not a lease.
33. In my view possessory licence is recognised by law atleast in Bombay city. Whatever may be the position under law of licence under section 52 of the Easement Act, as far as Bombay is concerned, the 'licence' has a distinct meaning.
Section 41 of the Presidency Small Cause Courts Act, 1882 provides that a suit between the licensor and licensee or a landlord and tenant, relating to recovery of possession of any immoveable property, shall be filed in the Court of Small Causes. It means law recognises a suit for possession between the licensor and the licensee. In other words even if the licensee is in possession, a suit can be filed for recovery of possession.
Similarly in the Bombay Rent (Hotel and Lodging, Houses) Control Act, 1947, there are some provisions which show that a licensee can be in actual possession of the property. In other words actual physical possession or exclusive possession of the property is not inconsistent with the theory of licence.
In the definition of licence in section 5(iv)(A) it is stated that a person in occupation of the premises under a subsisting agreement of licence is a licensee, then there is section 15(A) of the Act, which provides a licensee in occupation of a premises as on 1st February, 1973 shall be deemed to be a tenant under the Act. This also recognises a possessory licence and if the licensee was in possession on a particular day, he will become a regular tenant of the landlord.
Then we find that as far as license regarding residential premises is concerned, a special forum is created for eviction them. Section 13-A(2) provides that a landlord can recover possession of a residential premises given to a licensee by filing an application before the Competent Authority after the expiry of the licence period. The words used in that section are 'delivery of possession'.
Therefore, we find that a possessory licence is recognised by law in Bombay. Hence the argument that if there is exclusive possession, it rules out a theory of licence contended by the learned Counsel for the defendant cannot be accepted. I have already pointed out that in some of the decisions of the Apex Court it is mentioned that though possession is an important ingredient it is not conclusive to decide whether the transaction was a licence or lease.
34. Further more, I may point out that in section 13-A(2) of the Rent Act, in a proceeding filed by the landlord for the eviction of a licensee in respect of residential premises, it is clearly provided that the contents of the licence agreement shall be conclusive evidence of the facts stated therein. That means in a such eviction proceeding the licensee cannot plead that the transaction was not a licence, but it was a case of lease etc. By a special rule of evidence the law has declared that the licence agreement is conclusive of the terms of licence. This matter has been judicially considered and decided by me in a recent decision reported in : 1995(4)BomCR538 , Amarjit Singh v. R.N. Gupta, where I have held that in such a proceeding the contents of the licence deed is conclusive and no other evidence can be let me to prove the nature of the transaction. My view has been subsequently followed by another learned Single Judge of this Court in another case reported in : AIR1996Bom257 , Swami Attah v. Mrs. Thirty Poonawalla.
It may be that those two decisions referred to a case of eviction of a licensee before the Competent Authority in respect of the residential premises. What I am trying to point out is that a possessory licence is recognised in Bombay by both the two Acts mentioned above. Hence the fact that defendant was given possession of the suit premises is not inconsistent with a theory of licence.
35. The argument of the learned Counsel for the defendant about the plaintiff's right regarding United Bank or regarding other shop owners is not relevant for our present purpose. We are interpreting the written document between the parties. The defendant cannot get over its unequivocal admission in the previous suit that it was in possession as a licensee and never pleaded that it was in possession as a tenant. The argument that in the licence deed there is a clause that the licensee should not transfer or assign his right to others and this is not consistent with the theory of licence, has also no merit.
Such an argument was pressed and has been rejected by the Apex Court in two of the cases discussed by me above in the earlier part of the judgment which are reported in and : [1991]1SCR592 .
After giving my anxious consideration to the evidence on record, the law bearing on the point and the arguments addressed before me, I have no hesitation to hold that the transaction between the parties created under the document dated 27-12-1974 was one of licence and not a case of lease. Issue No. 2 is therefore answered in the affirmative and Issue No. 3 is answered in the negative.
Issue No. 2-A
36. The learned Counsel for the defendant contended that though there is no formal renewal of the suit agreement, the agreement must be deemed to have been renewed, since, the defendant has exercised option to renew the agreement.
If the renewal is at the sole option of the defendant, then the licence stands renewed, when once the defendant expressed intention to renew the same. But in my view the suit agreement does not provides for any unilateral renewal of the licence at the sole option of the defendant.
The suit agreement or licence deed is at page 45 of Exh. A. It is dated 27th December, 1974, the period of licence is shown as 12 years, hence the licence comes to an end on 26th December, 1986. But there is a provision for renewing the lease which is found in Clause 2 of the conditions, which is at page 47 and page 48 of Exh. A. Which reads as follows :---
'At the end of the said period of twelve years, the company shall, on the application of the licensee in writing, renew the licence for another period of twelve years if the company so deems fit on the terms and conditions to be mutually agreed upon.'
A mere perusal of the above clause indicates that by the end of the expiry of 12 years on the application of the defendant, the plaintiff may renew a licence, for another term. 'If the' plaintiff so deems fit'. Then it is subject to further condition of the terms and conditions to be mutually agreed upon.
37. In this case, admittedly the plaintiff has rejected the request of the defendant for renewal of the licence.
At page 76 of Exh. A we have the defendant's letter dated 8th July, 1986, requesting the plaintiff to renew the period for 12 years more. The plaintiff's reply may be found at page 78 of Exh. A which is a letter of the plaintiff dated 9th August, 1986, in which it is stated that request for renewal of the licence cannot be granted.
It is interesting to note that even prior to the defendant applying for renewal as per letter dated 8-7-1986 the plaintiff has made its position very clear that it has no intention of continuing the licence beyond the date of expiry. The plaintiff's first letter in this behalf is at page 70 of Exh. A, which is dated 17-9-1984, which is written about 2 years prior to the date of the expiry. In this letter the plaintiff informed the defendant to vacate the premises by the end of the licence period. It is also stated that the plaintiff requires the premises for its own use. It is also mentioned that such an advance notice (of more than two years) is given to the defendant, so that it can make alternative arrangement to shift its office from the suit premises to some other building.
Then plaintiff wrote one more letter dated 18-4-1986, which is at page 74 of Exh. A where again the defendant has been called upon to vacate the premises by the date of expiry of the licence period as demanded in the previous letter. This letter is written about 8 months prior to the date of the expiry of the licence period. Then, we come to the defendant's letter dated 8-7-1986 asking for renewal which has already referred to.
Therefore, we find that right from 1984 itself the plaintiff has made it clear that it wants the suit premises on the date of expiry of the licence period. Then, when a specific request was made by the defendant for renewal of the licence, the plaintiff rejected the same, which I have pointed out above. As already stated, as per the clause in the agreement, a licence can be renewed on the request of the defendant, but at the discretion of the plaintiff. Here the plaintiff has made it's position very clear that it has no intention of renewing the licence and there is specific rejection of defendant's application for renewal of the licence.
38. The learned Counsel for the defendant, contended that even after the expiry of 12 years, the defendant has been allowed to continue for 3-4 years and defendant has gone sending the licence fee through pay orders to the plaintiff. As far as, sending the licence fee through pay orders is concerned, it is an admitted position that the plaintiff has not encashed them and this is to the knowledge of the defendant.
As far as allowing the defendant to continue in the premises is concerned, it is not with the consent of the plaintiff. As already seen that even two years prior to the date of expiry, the plaintiff has demanded possession on the expiry of 12 years. This again followed by another letter in 1986. I have already referred to both the letters above. It is in evidence that the plaintiff has been continuously demanding the defendant and had number of meetings with the bank officials and also the Chairman and went on pressing them to vacate the premises. The plaintiff even went to the extent of contacting one of the joint secretaries in the Finance Department of the Central Government to prevail upon the defendant to vacate the premises. We can get all these things from an internal note put up by the defendant's officials as a note to the Board meeting dated 5-7-1988, which is at page 29 of Exh. C. We can get this idea from some other letters of correspondence between the parties, which are on record.
When the plaintiff has been insisting the defendant to vacate the suit premises, both before and after the date of expiry of the period, the defendant's continuation of the premises in spite of such demands will not give them any legal right. At any rate there is nothing to show that the licence has been renewed by contract.
39. Hence, considering the entire evidence on record, I have no hesitation to hold that the licence has come to an end and there is no merit in the contention of the defendant that the licence has been renewed or must be deemed to have been renewed as alleged in the written statement. Hence, Issued No. 2-A is answered in negative.
Issue No. 4
40. In view of my finding that defendant has not proved any tenancy right in the suit premises and it is case of licence and the licence period has expired and there is no renewal of the licence, the defendant cannot have any semblance of legal right to be in possession of the suit premises. The only two rights claimed are either tenancy or licence. Tenancy is not proved, the licence has come to an end and the theory of renewal of licence has no legs to stand. Defendant's possession after expiry of licence period was like that of a trespasser or of a person with no legal rights on the property. Hence, Issue No. 4 is answered accordingly.
Issue Nos. 5 & 6
41. The plaintiff company is admittedly the owner of the suit premises. The plaintiff company is admittedly in possession of the suit property. Hence, the plaintiff wants to retain its possession notwithstanding the decree obtained by the defendant for possession in Suit No 2735/90. The question is whether the plaintiff is entitled to continue in possession and whether the execution of the decree obtained by the defendant, should be restrained by an order of injunction.
The learned Counsel for the defendant contended that if such an injunction is granted in a suit filed under section 6(4) of the Specific Relief Act, then section 6(1) of the Act become nugatory. I have already considered this argument and rejected it while discussing Issues No. 1(A). But while discussing Issue No. 1-A, I have observed that though the suit is maintainable in the present form, the question whether the plaintiff is entitled to relief of injunction whether temporary or permanent, will be decided at a later stage. Now in the facts and circumstances of the case, whether the plaintiff has made out a case for grant of injunction? The learned Counsel for the defendant contended that a party who had taken law in his own hands and who has taken forcible possession should not be granted equitable relief of injunction. There is sufficient force in the argument of the learned Counsel for the defendant. If it is found that the plaintiff has taken law into its own hands and has taken wrongful possession, then the plaintiff will not be entitled to relief of injunction though the suit for injunction is maintainable. We have to make a distinction between the maintainability of the suit and the question whether the plaintiff is entitled to a particular relief. But after going through the materials on record, I find that this is not a case where the plaintiff has taken forcible or illegal possession by taking law in its own hands as now contended by the learned Counsel for the defendant. I will presently point out that this is a case where the defendant itself voluntarily vacated the suit premises after fire broke out to enable the plaintiff to carry out the repairs.
It is true that in the previous suit, the present plaintiff who was defendant stated that with prejudice he is admitting that plaintiff was dispossessed in that suit as mentioned in the plaint and this concession was 'only for the purpose of the said suit'. It is a conditional admission for the limited purpose of that suit only. Hence that concession will not ensure to the benefit of the defendant in the present suit.
42. As already seen fire broke out in the plaintiff-hotel including the suit premises on 12-4-1990.
Exh. N is a copy of notification in the letter-head to the defendant bank, which reads as follows :---
'Due to fire that broke out in Hotel Oberoi Tower, Bombay on 12th April, 1990, our International Division will not be able to function from that premises till further notice..... We have shifted out various departments as follows.....'
The notice has been issued by the General Manager of the defendant-bank.
It is therefore clear that the bank voluntarily shifted from the suit premises to some other building due to damage to the building as a result of fire.
In Exh. A at page 109, there is a letter of defendant-bank dated 15-6-1990 and the same latter is also marked as Exh. 1 on behalf of the defendant. That means both the parties are relying on the same letter dated 15-6-1990, written by the defendant-bank to the plaintiff. The subject mentioned as 'giving possession of our premises on first floor, Oberoi Hotel.' The bank has requested the plaintiff to carry out the required repairs as early as possibly. For that effect the bank has already handed over duplicate set of keys to the plaintiff for carrying out necessary repairs. Then the prayer is as follows:
'You have also indicated to us that you may be able to hand over our premises within 3-4 months time.....'
The contents of this letter make it very clear that defendant vacated the premises due to fire, the defendant handed over the duplicate keys to the plaintiff to effect necessary repairs and defendant requested the plaintiff to hand over possession of the suit premises. I am unable to see where there is foundation for the argument that the plaintiff has taken forcible possession or illegal possession or plaintiff has taken law into his own hands and therefore, the plaintiff cannot be continued with that illegal possession. It is a simple case of defendant giving possession of the premises to the plaintiff to carry out the repairs voluntarily.
In Exh. A at page 115, there is a letter dated 21st July, 1990 written by the defendant bank to the plaintiff. The relevant sentence is as follows:
'Please note that we have shifted out operations on temporary basis to various premises in order to enable you to carry out the repairs words.'
Here also the position is very clear that it is a case of defendant voluntarily vacating the premises.
It may be the plaintiff's case is that in view of the fire, the defendant vacated the premises and went away once and for all. If we accept the defence case as mentioned in these letters, it is not a case of the plaintiff taking forcible or wrongful possession of the premises.
Rightly or wrongly, voluntarily the defendant gave possession of the premises to the plaintiff and may be for effecting repairs and with a hope to take back the premises after the repairs are carried out. It may be that after effecting the repairs, the plaintiff did not allow the defendant to occupy the suit premises. But the question is whether the defendant had any such right to enter the premises in 1990. We have already seen that the licence came to an end by December, 1986. The defendant was continuing in the premises in spite of number of letters written by the plaintiff and in spite of repeated demands by the plaintiff calling upon the defendant to vacate the premises. In other words, the defendant has no legal rights to be in occupation of the premises in 1990 or any right to get back the possession of the premises in 1990. In these circumstances, the plaintiff says that there is no necessity of re-delivering the premises, since the period has already expired and the defendant's renewal offer has been rejected by the plaintiff. Hence, in my view, the defendant had no legal right to ask for possession of the premises and even if the defendant gets back possession by virtue of previous decree, it has to immediately surrender possession to the plaintiff, since it has no right to be in occupation of the premises.
It is well settled that the decree passed under section 6(1) of the Specific Relief Act is not a permanent decree. It is in the form of temporary or conditional decree subject to the result of a title suit under section 6(4) of the said Act. Now the plaintiff has made out a case that it has a right to be in possession of the suit premises and that the defendant has no manner of right to be in possession of the suit premises. In such a case, it would be empty formality of directing the plaintiff to surrender possession in pursuance of the previous decree and then on very next day he can execute this decree and take possession. As already stated decree under section 6(1) of the Act is not a final decree, it does not conclude or decide the rights of the parties. It is a temporary and speedy remedy provided for limited purpose.
Probably the defendant could have executed that decree and taken possession of the suit premises. But, in the appeal, the Supreme Court, passed an order staying the execution of that decree till the disposal of the present suit. Hence, in the circumstances, the plaintiff cannot be found fault with for continuing in possession. The defendant has no defence to the present suit except the previous decree obtained under section 6(1) of the Act. As already pointed out, a decree under section 6(1) of the Act is always subject to the final decree to be passed in a title suit under section 6(4) of the Act. Since, we are now deciding the rights of the parties finally in a suit filed under section 6(4) of the Act, the decree obtained under section 6(1) of the Act becomes inoperative and unexecutable when the plaintiff's title has been upheld in this suit and further it is held that the defendant has no legal right over the suit property. Hence, in my view, the plaintiff is entitled to continue in possession of the suit premises and further my finding is that the decree under section 6(1) of the Act has now become inoperative and has now become unexecutable in view of the present decree being passed under section 6(4) of the Act. Let me repeat that the decree under section 6(1) of the Act is always subject to the decree passed in a suit under section 6(4) of the Act. Even the Supreme Court has observed in the said appeal that there is no necessity to consider the appeal on merit, since present suit for determination of the rights of parties is pending before this Court and accordingly disposed of the appeal.
For the above reasons Issues No. 5 and 6 are answered in the affirmative.
Issue No. 7
43. In view of my finding on several issues, the plaintiff is admittedly in possession of the suit premises as an owner and defendant has failed to prove any legal right either tenancy or licence and hence, the plaintiff is entitled to a decree as prayed for.
The learned Counsel for the defendant contended that the plaintiff is not entitled to get the relief of injunction and its remedy is to surrender possession and then ask for delivery of possession.
When once the Court finds that the plaintiff is in lawful possession of the suit premises and that the defendant has no legal right over the suit property there is no legal impediment to grant a decree for injunction as prayed for by the plaintiff.
Even granting for a moment that in view of the previous decree, the plaintiff must surrender possession, then what follows For some time, I toyed with the idea of passing a decree declaring the right of parties and then directing the plaintiff to surrender possession in persuance of the previous decree and then, he can execute this decree and take possession according to law. It may be that the plaintiff has not asked the relief of possession, but is asking the relief of injunction. Order 7, Rule 7 of C.P.C. clearly provides that the Court can always give general or other relief, which may be just in the circumstances of the case.
I may mention here that in a case reported in : [1951]2SCR277 , Firm Sriniwas Ram Kumar v. Mahabir Prasad and others, where the Supreme Court granted a relief which was never asked for in the plaint. The suit was filed claiming a decree for relief of specific performance while denying the agreement of sale the defendant had pleaded that it had taken a loan from the plaintiff. The Supreme Court observed that under Order 7, Rule 7 of C.P.C. the Court can grant a decree for recovery of the loan, which is admitted by the defendant, though there was no prayer in the plaint.
44. I therefore feel that in view of the enabling provision under Order 7, Rule 7 of C.P.C. the Court in a given case can grant reliefs to the parties, which are just and equitable and to avoid multiplicity of proceedings. I could therefore easily direct the plaintiff to surrender the possession to the defendant and then execute this decree and take back possession. That would solve and take care of legal objection raised by the learned Counsel for the defendant.
However, on second thoughts I find that in the circumstances of the case, there is no such necessity. I have already pointed out that the decree under section 6(1) of the Specific Relief Act is a conditional and temporary decree subject to the final result of a decree in a title suit filed under section 6(4) of the Act. As soon as a decree is passed under section 6(4) of the Act, the decree under section 6(1) becomes inoperative and unenforceable. I therefore feel that the suit can be decreed as per the plaint without having recourse to Order 7, Rule 7 of C.P.C. It is well settled that Court must do substantial justice between the parties and not justice on technical consideration. When we have found that the plaintiff is in possession as an owner and that the defendant has failed to prove tenancy or renewal of the licence, there is no difficulty to grant a decree for injunction and for these reasons I hold that the plaintiff is entitled to a decree as prayed for.
I must place on record my appreciation to the able arguments advanced by the Senior Advocate Mr. S.H. Doctor and his assistant Mr. S.U. Kamdar on behalf of the plaintiff, and Mr. Ketan Parikh for the defendant.
45. In the result, the suit is decreed with costs in terms or prayers Clauses (a), (b) and (c) in para 25 of the plaint.