MEGH RAJ Vs. D C M LIMITED

JUDGEMENT

(1.) The main issue that falls for consideration in this appeal is whether the appellantis a lessee or a licensee which is to be arrived at on the basis of the interpretationand construction of the agreement between the appellant/defendant and therespondent/plaintiff and marked Ex.PW2/1 and on the basis of surroundingcircumstances. The trial court held that the appellant is a licensee which was affirmedby the appellate court as against which the present appeal has been preferred.

(2.) The respondent/plaintiff is the owner of shop No.5, Line No. C, Gaushala marg,Kishan Ganj, Delhi. The appellant/defendant took the aforesaid shop from the plaintiffas a licensee vide license deed dated 11.6.1980 at the rate of Rs. 50.00per month forthe purpose of selling milk and milk products for the benefit of workers and theirfamilies residing in the DCM colony. The said license was for 2 years and wasrevokable even prior to that without assigning any reason. The said license wasrevoked by the respondent/plaintiff by a notice dated 12.8.1981. As the appellantdefendant failed to deliver possession of the said shop even after revocation of thelicense a suit was instituted in the court of Subordinate Judge, Delhi seeking for adecree for possession and for recovery of Rs. 100.00 as license fee and Rs. 500.00asdamages. The appellant filed a written statement raising a preliminary objection thatthe plaintiff was not the owner of the property in question. It was also alleged that theappellant was not a licensee but is a lessee and a tenant there being relationship oflandlord and tenant. On the pleadings of the parties six issues were framed in the suit.During the trial the parties led their evidence both oral and documentary and onclosure of the same arguments of the counsel appearing for the parties were heardby the Subordinate Judge and by his judgment and decree dated 19.5.1989 adecree for possession was granted by the Subordinate Judge in favour of therespondent alongwith a decree for payment of Rs. 600.00 with costs and also forpayment of damages Rs. 250.00per month. Being aggrieved by the said judgment anappeal was preferred before the Additional District Judge, who byjudgment dated5.6.1999 dismissed the appeal. Being aggrieved by the same the present appealhas been preferred in this court by the appellant, on which I have heard the learnedcounsel appearing for the parties.

(3.) Mr. Sabharwal appearing for the appellant submitted that the agreement betweenthe parties which is proved as Ex.PW2/1 ex facie indicates that the parties intendedto create a tenancy and therefore, the civil court would have no jurisdiction to try thesuit for possession as its jurisdiction would be barred by Section 50 of Delhi RentControl Act. He also submitted that on a proper interpretation and construction of thesaid document as also the attending circumstances it is proved and established thatthe parties intended to creat a tenancy and not a license and therefore, the conclusionarrived at by the courts below are illegal and void. In support of his contention thelearned counsel appearing for the appellant relied upon the decisions of the SupremeCourt in B.M. Lall and others Vs. M/s. Dunlop Rubber Company (India) Limitedand another, reported in AIR 1968 SC 175; Smt. Rajbit Kaur and Another Vs. M/s. Chokesiri & Co. reported JT 1988 (3) SC 593; M/s. Permanand Gulabchand &Co. Vs. Mooligi Visanji, reported in AIR 1990 Kerala 190 & M/s. Quality CutPieces & etc. Vs. M/s. M. Laxmi and Co., reported in AIR 1986 Bombay 359.