SUSHIL MALHAN Vs. PEAREY LAL BHAWAN ASSOCIATION

JUDGEMENT

(1.) IN the present appeal we are again called upon to answer the vexed question - "Whether in the facts and circumstances of the present case, a lease or licence was created in favour of the appellant in respect of a canteen existing at the Gandhi Memorial Hall, New Delhi owned by the respondent, a charitable trust registered under the Societies Registration Act - The germane facts are in a narrow compass. In the year 1973, by means of a letter dated 12.9.1973 (Ex. PW 1/A), the respondent -society permitted the appellant to run canteen services in the Gandhi Memorial Hall against the charge of Rs. 10/ - per day/show, which were later raised to Rs. 50/ - per day/show. The appellant stared running the canteen services and paid the charges uptill the beginning of 1983. On or about 28.1.83, the respondent served the appellant with a notice to clear his articles from the premises by 4.2.1987. The appellant did not clear his articles by the aforesaid date and made a representation to the respondent -society for grant of reasonable time and also instituted a suit for permanent injunction for restraining the respondent from evicting the appellant from the premises and from removing or throwing away his articles from the canteen. The basis of the suit was that licence granted to the appellant to run the canteen was not revoked and the threatened action of the respondent -society was not in accordance with law. However, later the appellant improved his case by pleading that he was not merely a licencee of the canteen but was a tenant with exclusive possession with certain other rights and was therefore not liable to be evicted from the canteen in question. The suit was contested by the respondent -society thereby denying that there existed any lease between the parties in respect of the canteen in question and pleading and that the appellant was granted a mere licence to run the canteen services in the year 1973 which was revoked in accordance with law and, thereafter, the appellant had no right or legal authority to run the canteen services and suit for injunction was not maintainable. On the pleadings of the parties the learned trial court framed the following issues:

(2.) PARTIES largely relied upon the oral testimony of their witnesses besides the documentary evidence in the shape of correspondence exchanged between the parties. On a consideration of the evidence and material brought on record, the learned trial court answered issue No. 2 in negative by holding that the suit for permanent injunction was maintainable. However so far as the crucial issues No. 1 and 3 touching the respect whether the plaintiff -appellant was granted a lease or licence in respect of the canteen in question, the learned trial court categorically held that the plaintiff -appellant was a mere licencee in regard to the canteen/store etc. in the premises of the defendant. Despite the said finding, but in view of the provisions contained in Section 63 of the Easement Act, the learned trial court vide impugned judgment dated 22.5.97 passed a decree for injunction in favour of the plaintiff ordering that the plaintiff shall not be dispossessed from the canteen and store etc. except with due process of law i.e. after giving a reasonable time of one month to the plaintiff to remove his articles from the canteen/store of the defendant premises. Aggrieved by the said finding the appellant has filed the present appeal.

(3.) AS noticed above the facts in the case in hand are not much in dispute. It is an admitted case of the parties that the permission to run the canteen was granted to the appellant in the year 1973 by means of a communication dated 12.9.1973 issued by one Shanti S. Kalra, Manager of the respondent -society addressed to the appellant. The contents of the said letter exhibit PW 1/1 reads as under: