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Vummidi Bangaru Chetty (P) Ltd v. M/s.Spencer & Co.Ltd - C.R.P.NO.3235 OF 2001  RD-TN 276 (19 April 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA C.R.P.NO.3235 OF 2001
AND C.M.P.Nos.17266 OF 2001 AND 2348 OF 2002 Vummidi Bangaru Chetty (P) Ltd... Petitioner -vs-
M/s.Spencer & Co.Ltd. ... Respondent For petitioner : Mr.Sriram
for M/s.A.S.Kailasam & Associates For respondent : Mr.R.Murari
Petition against the order and decretal order dated 25.09.2001 made in M.P.No.250 of 2001 in E.P.No.539 of 2000 in R.C.O.P.NO.2037 of 19 98 on the file of the XIII Judge, Court of Small Causes, Chennai. : O R D E R
The challenge in this revision is to the order of the execution Court dated 25.09.2001 in M.P.No.250 of 2001 in E.P.No.539 of 2000 in R.C.O.P.NO.2037 of 1998, rejecting the petitioner's application filed under Section 47 C.P.C. to dismiss E.P.No.539 of 2000, on the ground that the decree of eviction granted in R.C.O.P. was a nullity.
2. Twin questions arise for consideration in this revision, namely, as to whether this court lacks jurisdiction to deal with this revision and also as to the correctness of the order impugned in this revision.
3. As the preliminary objection as to the maintainability of this revision has been raised, it has become incumbent upon me to deal with the said question in the first instance before going into the question about the correctness of the order impugned in this revision. On the preliminary issue raised at the instance of the respondent, the relevant provision that requires investigation is with regard to Section 18 of The Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 read along with Section 47 C.P.C.
4. To understand the controversy and scope of the issue raised, it is worthwhile to extract the above referred to Sections. Section 18 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 ( hereinafter referred to as 'the Act') reads as under :
"Execution of Orders : (1) Every order made under Sections 10,14,15 ,16 and 17 and every order passed on appeal under Section 23 or on revision under Section 25 shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court.
(2) An order passed in execution under sub-section (1) shall not be subject to any appeal or revision."
Section 47 C.P.C. is to the following effect : "Questions to be determined by the Court executing decree : (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted by Amendment Act, 1976.) (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
(Explanation I: For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II: (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.)"
5. The contention raised on behalf of the respondent is that when Sub-Section 2 of Section 18 of the Act places an embargo on any appeal or revision against an order passed under Sub-Section 1 of Section 1 8 and when the present order impugned in this revision came to be passed by the execution Court by virtue of the execution proceedings launched under Section 18 (1), though the present order came to be passed in an application filed under Section 47 C.P.C., in that execution proceedings, it is nonetheless an order passed in the proceedings launched under Section 18 (1) of the Act and, therefore, the Revision was not maintainable.
6. To deal with the vexed question raised, the brief facts are also required to be stated, which are as under : The respondent filed R.C.O.P.No.2037 of 1998 for eviction on the ground of additional accommodation under Section 10 (3) (c) of the Act. The petitioner having remained exparte in the said proceedings, an order of eviction came to be passed on 02.03.1999. Based on the said order of eviction, when the respondent filed E.P.No.539 of 2000, the petitioner came forward with the present M.P.NO.250 of 2001, contending that the relationship between the petitioner and the respondent was one of licensor and licensee, that there was no landlord-tenant relationship and therefore, the Act itself was not applicable to the case on hand and consequently, it was prayed that when there was no inherent jurisdiction to entertain the main R.C.O.P., the eviction order was not executable and therefore, the E.P.was liable to be dismissed. The said M.P. was resisted by the respondent, contending that the present contention raised in the M.P. was not tenable and that the Execution Petition was maintainable. The execution Court reached a conclusion that the contention that the Court lacks jurisdiction was not acceptable and therefore, the application filed under Section 47 C. P.C. was liable to be rejected.
7. In the above stated background, the question for consideration is, whether in the present revision, the order impugned can be questioned ?
8. In this context, several decisions were cited by both the parties. On behalf of the respondent, reliance was placed upon the judgments reported in 1982 (1) MLJ 212 (S.S.S.A.Vivekanandam v. S.V.Kamala Bai), 1980 TLNJ 155 (Purushotham Chettiar v. Puskraj Jain & Others), 1 999 (1) SCC 558 (Bhawarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises) and 2000 (1) L.W.481 (S.P.Manoharan and S.P. Raveendran v. Zamila Beevi and 5 Others). On the other hand, learned counsel for the petitioner relied upon the judgments reported in AIR 1991 SC 1094 (M/s.East India Corporation Ltd. v. Shree Meenakshi Mills Ltd.), AIR 1985 MADRAS 318 (Fathima Automobiles v. P.K.P.Nair and another), 1990 (2) L.W. 521 (Vincent Poobalarayar v. The Rent Controller (District Munsif), Tuticorin and 2 others), 1978 (1) MLJ 79 (S.S. Khader Mohammed Rowther and Co., represented by its Proprietor S.Syed Aswudeen v. G.S.Sundaram and Brothers), AIR 1965 SC 610 (Mrs.M.N. Clubwala and another v. Fida Hussain Saheb and others) and AIR 1986 BOMBAY 3 59 (M/s.Quality Cut Pieces etc. v. M/s. M.Laxmi and Co.).
9. In the judgment reported in 2000 (1) LAW WEEKLY 481, the question for consideration was, when an order of eviction was passed in an application filed under Section 11 (4) of the Act and when the said order was challenged in an R.C.A., whether, after the disposal of the R.C.A., would it be open for the tenant to contend before the Rent Controller that the order came to be passed exparte and therefore it should be heard again ? It was in that context, it was held that on the principles of res-judicata, there was no scope for reagitating the matter, which has already become final. In the facts and circumstances of the case on hand, in my considered view, the said judgment is totally inapplicable.
10. In the judgment reported in 1980 TLNJ 155, the learned Judge has dealt with the case similar to the one involved herein and the statement of law in the said judgment is to the following effect : "Merely because in a statute provisions of Civil Procedure Code are adopted, it does not mean that in spite of specific exclusion made regarding appeals and revision therein, the procedural law, which has been invoked, would override a specific provision of the Act. Instead of annexing the provisions of the Civil Procedure Code as part of Section 18 or to that of the Act, for the purpose of convenience, the applicability of the Civil Procedure Code to the proceedings and orders passed by the Rent Controller is envisaged u/s.18 (1) of the Act. Being fully aware of the existence of the provisions made for appeals and revisions in C.P.C., the legislative intent to exclude such appeals or revisions had been specifically incorporated in S.18 (2) of the Act. The maxim 'generalia specialibus non derogant' is applicable herein. In spite of what is provided u/s.18 (2) of the Act, if this Court is to exercise jurisdiction u/s.115 of the Civil Procedure Code, it would be against the legislative intendment. The remedies provided under a particular statute have to be worked out within the four corners of the statute."
11. Similarly, in the judgment reported in 1982 (1) MLJ 212, in more or less identical circumstances, the learned Judge has stated as under in paragraph 5 :
"Learned counsel for the tenant submitted that the bar under Section 18 (2) operated only in a case where the order sought to be revised is an order "passed in execution". According to learned counsel, in a case where the Rent Controller declines to declare an order of eviction as a nullity, that order cannot be regarded as "an order passed in execution", within the meaning of Section 18 (2). I do not accept this contention as being based on a true construction of Section 18 (2). To accept the argument of learned counsel would lead to curious results. For, on that interpretation if the Rent Controller dismissed an execution petition, then a revision would be available whereas, if he allows an execution petition, a revision will not be available. I do not think that the bar under Section 18 (2) can be made to depend on the nature of the order passed by the Rent Controller under Section 18 (1) of the Act. In my opinion, every order passed by the Rent Controller while disposing of an execution petition must be regarded as "an order passed in execution under Sub-section (1)" of Section 18."
12. In the judgment reported in 1999 (1) SCC 558, it has been held that execution Court cannot go behind the decree unless it is shown that it was passed by a Court, having inherent lack of jurisdiction, which would make it a nullity. In the said judgment, the Hon'ble Supreme Court was pleased to extract the observation of an earlier judgment of the Supreme Court itself reported in 1970 (1) SCC 670 (Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman), which can be usefully referred to for our present purpose. "..... The observation at SCR p.68 of the Report deserves to be extracted in extenso : (SCC pp.672-73, paras 6-7) "6. A Court executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarthi, the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction."
10. The aforesaid decision of this Court squarely applies to the facts of the present case. This is not a case in which the award decree on the face of it was shown to be without jurisdiction. Even if the decree was passed beyond the period of limitation, it would be an error of law or at the highest, a wrong decision which can be corrected in appellate proceedings and not by the executing Court which was bound by such decree. It is not the case of the respondent that the Court which passed the decree was lacking inherent jurisdiction to pass such a decree. This becomes all the more so when the respondent did not think it fit to file objection against the award which was sought to be made the rule of the Court."
13. In the Division Bench judgment of our High Court reported in AIR 1985 MADRAS 318, while dealing with a case, which arose under Section 18 (1) and (2) of the Act vis-a-vis Order 21 Rules 97 and 101 of C.P.C., the Division Bench has held as under in paragraph 5 : "...... Thus, a close reading of S.18 and S.23, indicates that there may be orders passed by the Rent Controller which may not fall within S.18 (1) and that those orders may be subject to appeal under S.23 of the Act. It is further significant to note that S.23 (1) (b) confers right of appeal to `any person aggrieved' by an order passed by the Controller. The use of the expression `any person' in S.23 (1) (b) seems to suggest that it is not only the parties to the eviction order but also persons affected by any order passed by the Rent Controller could file an appeal. If the filing of the appeal under S.23 is contemplated only by the parties to the eviction proceedings, then the Legislature would have used the words `any party aggrieved' instead of `any person aggrieved'. The use of the general expression like `person' would indicate that, as already stated, an appeal could be maintained not only by a party to the eviction proceeding but also by a person who feels aggrieved by any order passed by the Controller. In this case, the executing Court has passed an order directing the tenants to deliver possession of the property in pursuance of the order of eviction. That Order alone can be taken to be an order passed under S.18 (1). Subsequent to such an order, the appellant herein has obstructed the delivery and an application under O.21 R.97 C.P.C. has been filed, and an order has been passed by the Rent Controller on that application. The order passed by the Rent Controller in an application under O.21 R.97 cannot, in our view, be taken to be an order passed under S.18 (1) of the Act. That should be taken to be an independent order passed under the Civil Procedure Code and not under the Rent Control Act. Though the order is actually passed by the Rent Controller in an application under O.21 R.97 C.P.C., that should be taken to have been passed by him in exercise of the powers of a Civil Court as provided in S.18 (1) of the Act. We are not therefore in a position to construe the order passed by the Rent Controller in an application under O.21 R.97 C.P.C., as an order passed by the Rent Controller under S.18 (1) so that the bar under S.18 (2) could be invoked. Section 18 (2) bars an appeal or revision only in respect of an order passed in execution under sub-s.(1). But, that section will not be a bar for an appeal or revision being filed against an order passed in exercise of the power under O.21 R.97 C.P.C. If there is no bar for an appeal or revision under S.18 (2), then the next question that will arise is as to whether an appeal is available to the appellant in this case." ".......In this view of the matter, we have to hold that under S.23 (1) (b) of the Act, an obstructor who is aggrieved against an order directing removal of obstruction passed by the Rent Controller could file an appeal under that section and the bar contained in S.18 (2) will not apply to such an order. We have to hold that in this case, the appellant has a right to appeal under S.23 (1) (b) of the Act against the order impugned in the writ petition directing removal of obstruction which is an order not passed under S.18 (1), but one passed under O.21 R.97 C.P.C......" (underlining is mine).
The said Division Bench judgment was followed by a subsequent Division Bench in the judgment reported in 1990 (2) L.W.521.
14. In the judgment reported in AIR 1991 SC 1094, while dealing with the validity of a Civil Court decree for eviction, in the context of a subsequent declaration made by the Hon'ble Supreme Court striking down the limitations prescribed under Sections 30 (ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, restricting the jurisdiction of the Act based on the monthly rent payable in respect of a residential premises while ultimately holding that the Civil Court acting without the aid of the exclusionary provision in Clause (ii) of the Section 30 during the period of invalidity has become corum non judice and its proceedings resulting in the decree a nullity was pleased to rely upon an earlier judgment of the Hon'ble Supreme Court reported in AIR 1954 SC 340 at p.342 (Kiran Singh v. Chaman Paswan), which is to the following effect :
"......It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial , or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities." ( underlining is mine)
15. In the above stated declaration of law made in the above referred to judgments, the question that remains for consideration is, as to whether this Revision Petition is maintainable ?
16. In my considered opinion, this Revision is maintainable for the following reasons :
It is true that the judgments of His Lordship Mr.Justice Sathiadev as well as His Lordship Mr.Justice V.Balasubrahmanyan reported in 19 80 TLNJ 155 and 1982 (1) MLJ 212 support the stand of the respondent. However, the reasoning of the Division Bench judgment reported in AIR 1985 MADRAS 318, though rendered with particular reference to an application dealt with under Order 21 Rules 97 and 101 C.P.C. still whatever said in the said judgment, would mutatis mutandis apply in all fours even with reference to an application filed under Section 47 C.P.C. While in the latter it was a case relating to an obstructor, in the former, it was on the invocation of the omnibus provision contained in Section 47 C.P.C. However, in either case, the parallel that could be drawn is that both the proceedings came to be initiated in pending execution proceedings by invoking the relevant provisions contained in the Civil Procedure Code. When the Division Bench in the judgment reported in AIR 1985 MADRAS 318 having declared the law to the effect that the order passed by the Rent Controller in an application filed under 21 Rule 97 CPC cannot be taken to be an order strictly passed under Section 18 (1) of the Act and that, that order should be taken to be an independent order passed under the Civil Procedure Code and not under the Rent Control Act, then, even though it was passed by a Rent Controller, such an order could be challenged either by way of an appeal or revision. On a parity of reasoning, an application filed under Section 47 C.P.C. would also meet with the same fate and thereby, that could also be challenged by way of a revision. When the position has been so succinctly stated by the Division Bench without giving any scope for ambiguity, it will have to be held that the said dictum of the Division Bench would virtually render the judgments of the learned single Judges reported in 1980 TLNJ 155 and 1982 (1) MLJ 212 ineffective and thereby impliedly overruled the judgments of the learned single Judges. In other words, in view of the binding Division Bench judgment of this Court reported in AIR 1985 MADRAS 3 18 (Fathima Automobiles v. P.K.P.Nair and another), the earlier two judgments of the learned single Judges referred to above cannot be followed. Moreover, the Division Bench having held that an order even though passed in a proceedings under Section 18 of the Act before the authority constituted under the Rent Control Act, by virtue of the application of the provisions of the Civil Procedure Code, the ultimate orders passed in those applications based on the provisions of the Civil Procedure Code would be totally independent of the provisions contained under Section 18 (1) of the Act and thereby, the exclusion clause under Section 18 (2) would not be applicable. It cannot be held that the said declaration of law could be applied only to applications filed under Order 21 Rules 97 and 101 C.P.C. and not to applications filed under Section 47 C.P.C. Therefore, even though the judgments of the learned single Judges reported in 1980 TLNJ 155 and 1982 (1) MLJ 212 were relating to applications filed under Section 47 C.P.C., the Division Bench judgment will have to be preferred as against the judgments of the learned single Judges and consequently, I hold that the Civil Revision Petition is maintainable.
17. In any event, in this context, when the question raised is based on the submission that the original decree was a nullity due to total lack of jurisdiction, by virtue of the power vested with this Court under Article 227 of the Constitution, this Court can, suo motu, exercise jurisdiction and set aside the order in the event of lack of jurisdiction as pleaded is found to be in order. For this proposition, I wish to draw support from the decision of His Lordship Mr. Justice M.Srinivasan reported in 1992 (1) L.L.N. 627 (Tamil Nadu Mercantile Bank Ltd. v. T.Venkatesan), wherein, in paragraph 28, the learned Judge was pleased to hold as under : "..... It is also open to me to exercise my power under Art.227 of the Constitution of India suo motu and call for the records in Interlocutory Application No.22348 of 1990 and set aside the order made therein when it is found by me that the trial Court has no jurisdiction to entertain the suit itself. Having come to the conclusion that the suit is unsustainable for want of jurisdiction in the Court in Civil Revision Petition No.1531 of 1991, which is undisputedly maintainable in this Court, I do not think it necessary to decide whether the other revision petition, viz., Civil Revision Petition No.2269 of 1991 is maintainable or not. While taking note of the three rulings referred to above to the effect that this Court can exercise its powers under S.115 of the Code of Civil Procedure when the trial Court suffers from total lack of jurisdiction......."
18. In the judgment reported in AIR 1980 SUPREME COURT 892 ( Vishesh Kumar v. Shanti Prasad), while dealing with a case, which arose out of a revisional order of the District Judge under Section 25 of the Provincial Small Cause Courts Act, where the question was whether there could be a further revision of the revisional order of the District Judge by the High Court under Section 115 C.P.C., the Hon'ble Supreme Court was pleased to hold that the High Court was not vested with such revisional jurisdiction under Section 115 over a revisional order made by the District Court under that Section. The Hon'ble Supreme Court was also pleased to hold that if such a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a small cause suit, then the fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, as that would enable the High Court to enjoy jurisdictional power in respect of an order arising out of small cause suit, which was never intended at all. In that context, when a submission was made that the case should be remitted to the High Court for considering the revision petition as a petition under Article 227 of the Constitution, it was held that a revision under Section 115 C.P.C. is a separate and distinct proceedings of a petition under Article 227 of the Constitution and one cannot be identified with the other.
19. A learned single Judge of the Gauhati High Court, in the judgment reported in AIR 1993 Gauhati 89 (Jyotish Chandra Borbara v. The Bura-Gohain Tea Co.Pvt.Ltd and Ors.), following the above referred to Supreme Court judgment, was of the view that a revision petition filed under Section 115 C.P.C. was not maintainable, in view of the appeal remedy available to the petitioner in that case and the prohibition contained in Section 115 (2) of C.P.C. The learned Judge was also of the view that in view of the far more comprehensive and efficacious remedy available to the petitioner therein under Order 43 Rule 105 of C.P.C., the remedy under Article 227 of the Constitution was not appropriate. The learned Judge therefore hold that no interference was called for under article 227 of the Constitution.
20. In the judgment reported in 1995 (1) LAW WEEKLY 141 ( Annapoorni v. Janaki), His Lordship Mr.Justice M.Srinivasan, as he then was, was pleased to hold as under in paragraph 11 :
"When this Court finds that a decree suffers from an error of law apparent on the fact of the record owing to non-application of mind of the Court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to succeed to the estate of a deceased Hindu. There is no earthly reason for depriving the mother of the deceased of her legitimate share in the estate which in this case happens to be a moiety. This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of this Court. It is only for that reason, I am exercising my powers under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India."
21. In the judgment reported in AIR 1987 SUPREME COURT 203 (Aundal Ammal v. Sadasivan Pillai), the views expressed in AIR 1980 SUPREME COURT 892 were emphasised and the Hon'ble Supreme Court was pleased to state the law as under in paragraph 24 :
"It was urged that in case we are of the opinion that a revision under Section 115 of the Code of Civil Procedure does not lie, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accede. A petition under Article 227 of the Constitution is different from revision under Section 115 of the Code of Civil Procedure. The two procedures are not interchangeable though there are some common features. It must, however, be emphasised that we are not dealing in this appeal with the constitutional powers of the High Court under Article 227 of the Constitution nor are we concerned with the powers of the High Court regulating appeals under the Kerala High Court Act, 1958. We are concerned in this case whether the High Court, in view of the scheme of the Act, had jurisdiction to interfere under Section 115 of the Code of Civil Procedure. We reiterate that to vest the High Court with any such jurisdiction would be contrary to the scheme of the Act, would be contrary to the public policy, and would be contrary to the legislative intent as manifest from the different sections of the Act."
22. Inasmuch as I have held that by virtue of the position that the exclusion clause under Section 18 (2) of the Act would not apply to an order passed under Section 47 C.P.C; irrespective of the position as to whether suo motu revision under Article 227 of the Constitution could be exercised or not, since this Civil Revision Petition is maintainable on its own, I overrule the preliminary objection raised on behalf of the respondent, questioning the maintainability of the revision petition as against the order impugned in this revision.
23. When the correctness of the order impugned in this revision is scrutinised, it will have to be seen, whether on the face of the record, the decree passed was one without jurisdiction.
24. On this aspect, the stand of the petitioner in M.P.No.250 of 20 01 was that the relationship between the parties was one of licensor and licensee and not of landlord and tenant and therefore, the order of eviction passed in the main R.C.O.P. was a nullity. In this context, reliance was placed upon the judgment of the Bombay High Court, wherein the test to be applied to find out whether a particular document operates as a lease or licence has been stated by extracting the judgment of the Hon'ble Supreme Court in Sohanlal Naraindas v. Laxmidas Raghunath reported in 1971 Maharashtra Law Journal 604 at p.607, which is to the following effect : " Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance. Mrs.M.N.Clubwala v. Fida Hussain Saheb, AIR 1965 SC 610."
25. A reading of the above extracted portion makes it clear that if the instrument intended to create an interest in the property, then, it would be a lease and if it does not, it would only be a licence. Therefore, the crucial test here is creation of interest in the property while concluding the proposal by way of a contract in order to hold the same as a lease. If the said conclusion by way of creation of interest in the property is not disclosed, then it could only be construed as a licence and not a lease. Again in the judgment of the Hon'ble Supreme Court reported in AIR 1965 SUPREME COURT 610 (Mrs.M.N.Clubwala and another v. Fida Hussain Saheb and others), it has been held that the intention of the parties is very relevant for determination of the transaction.
26. On the above said principles, when the stand of the petitioner is analysed, I find that in the very application filed in R.C.O.P.NO.2037 of 1998 by the respondent, it is contended as under in paragraphs 3,4,5,6, and 7 :
"3. ......The petitioner entered into a concessionaire's agreement in 1982 with the respondent in and whereby the respondents were permitted to display and sell their products in the petitioner's showroom on a leave and licence basis. It was made expressly clear in the Agreement, that the arrangement did not constitute a tenancy and that it was purely a licensing arrangement under which the respondent was bound to pay the petitioner a monthly commission at the rate of 10 on sales, together with service charges of Rs.500/- per month. Accordingly, both parties acted in accordance with the above arrangement and the respondent displayed and sold their products under the above arrangement. 4. .....The petitioner therefore proposed to demolish the old Spencer's Building Complex and to develop the entire property by promoting a multi-storeyed building in the property. When the work started, the respondent along with other concessionaire's, expressed their desire to continue the then arrangement with the petitioner in the new shopping complex along with the petitioner.
5. .....The respondent accordingly shifted to the new complex known as "Spencer Plaza" (within the petitioner's super market) on the same terms as existed at that point of time, save that the respondent agreed to pay proportionate air-conditioning and maintenance charges based on actuals. 6. ......As stated above, the respondent was liable to pay to the petitioner a monthly commission of 10 on the value of their sales, and service charges of Rs.500/- per month together with A/c and maintenance charges. The respondent was therefore required to forward on a monthly basis to the petitioner their sales details so as to enable the petitioner to work out the commission charges.
7. .....The petitioner caused a counsel's notice to be issued to the respondent dated 03.04.1998 calling upon the respondent to cease the display of their products from the area the respondents are occupying at Spencer Plaza, namely, the schedule mentioned space, and hand over vacant possession of the same on the expiry of 30 days from the date of the notice. The petitioner submits that though the respondent had acknowledged receipt of the said notice dated 04.03.1998, they have not come forward to vacate the space being used by them.
The petitioner submits that in view of the stand taken by the rest of the concessionaires who are occupying space within the petitioner's super market under similar arrangement, that they are not licensees but tenants under the petitioner, the petitioner is filing the present petition under the Rent Control Act seeking eviction of the respondent from the said premises."
27. Therefore, a reading of the petition, on the face of it, discloses that even according to the respondent's own averments in the main R.C.O.P., the relationship between the parties was only as licensor and licensee and not one of landlord and tenant. In fact, when the exparte order of eviction came to be passed on 02.03.1999, the Rent Controller merely stated that P.W.1 was examined, Exs.P-1 to P4 were marked and that the petition averments stood proved. On the above stated conclusion, the order of eviction came to be allowed. Ex.P-1 was an authorisation letter to enable P.W.1 to depose before the Court. Ex.P-2 was a communication dated 24.06.1982, stated to have been written by the respondent herein with reference to the relationship between the parties. Ex.P-3 was a lawyer's notice issued on behalf of the respondent and Ex.P-4 was the acknowledgement card. Therefore, except Exs.P-2 and P-3, there was no other material placed before the Rent Controller while seeking for the order of eviction.
28. As rightly contended by the learned counsel for the petitioner, both Exs.P-2 and P-3 only confirm the position that the relationship was only by way of licensor and licensee and not a lease. In fact, in the lawyer's notice in Ex.P-3, it is specifically averred to the following effect :
"It is relevant to point out that in terms of the arrangement entered into with my client, you are entitled to display and sell your products in my client's showroom as a licensee. In terms of the above arrangement, followed by mutual discussion had with my client's representatives, you are liable to pay my client a commission of 10 on the sales together with services charges of Rs.500/- per month." ( underlining is mine)
29. In fact, even though the petitioner remained exparte, it is the settled legal position that by virtue of the provisions contained in Section 10 (3) ( c ) read along with Section 10 (3) (a) and (e), the Rent Controller should be satisfied with the bona fide claim of the landlord and that the Rent Controller's impression regarding the bona fide claim should be reflected in the order and without showing such satisfaction, if an order is passed, the same cannot be construed as one passed in consonance with the provisions of the Act.
30. In the judgment reported in 1978 (1) MLJ 79 (S.S.Khader Mohammed Rowther and Co., represented by its Proprietor S.Syed Aswudeen v. G.S.Sundaram and Brothers), it was held that in the absence of such a satisfaction reflected in the order, the very order itself would be a nullity.
31. If that is the position, the order of the Rent Controller dated 02.03.1999, in merely stating that the claims made in the petition were proved; without any discussion; especially where the respondent itself came forward with the specific claim that the relationship between the parties was only by way of licensor and licensee and not one of landlord and tenant, cannot be held to be one passed strictly in consonance with the stipulations contained in Section 10 (3) ( c ) of the Act read along with Section 10 (3) (a) and (e) of the Act.
32. When that be the position, the present application filed by the petitioner in M.P.No.250 of 2001 in E.P.No.539 of 2000 under Section 47 C.P.C. contending that the very order of eviction was a nullity and therefore, not executable was fully justified and sustainable and the order of the execution Court in merely relying upon Ex.R-1, wherein, in the subject column, it is merely stated as rental lease to hold that the petitioner was a tenant is wholly unsustainable.
33. Apparently, the execution Court had proceeded in an obsessive manner and was reluctant to examine the real issue posed for consideration, which resulted in the passing of the order impugned in this revision. In fact, Ex.R-1 was not a document filed in the Rent Control proceedings, at the instance of the respondent. By relying upon Ex.R-1, the respondent wanted to take a sudden 'U' turn from the stand made in the main R.C.O.P.itself, which ought not to have been permitted by the execution Court for mere asking. Under Section 47 C.P.C., when it was incumbent upon the execution Court to determine all questions arising between the parties in which the decree was passed in relation to its execution, especially, when the said application sought for determination of a question about the executability of the decree on the ground that it was a nullity, by passing the present order impugned in this revision, the execution Court has only shirked its responsibility by relying upon the expression contained in a document, which was not even part of the earlier R.C.O.P. proceedings and the said document was not the basis for the determination of the relationship between the parties, which, on the other hand, was, in fact, based upon Exs.P-2 and P-3, filed in the original proceedings. Therefore, the execution Court committed a serious illegality by closing its eyes to the stark realities, while passing orders impugned in this revision and thereby, rejected the application filed under Section 4 7 C.P.C., without discussing the relevant considerations with reference to the plea regarding the nature of the decree as to whether it was executable at all.
34. In such circumstances, when, as discussed above, on the face of it, the decree was demonstrated to be a nullity, as rightly claimed by the petitioner, the decree was inexecutable and consequently, the E.P. ought to have been dismissed on that score.
35. In the result, the Revision is allowed; the order impugned is set aside; M.P.No.250 of 2001 shall stand allowed and E.P.No.539 of 20 00 shall stand dismissed. No costs. Consequently, the connected C.M.Ps. are closed.
Index : Yes 19-04-2002 Internet : Yes
Court of Small Causes,
F.M.IBRAHIM KALIFULLA, J.
C.R.P.No.3235 OF 2001
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