VASALA Vs. SHAIK SALIM PASHA

JUDGEMENT

(1.) THIS Second Appeal arises from the judgment and decree in A.S. No. 109 of 2006 of learned Third Additional Sub Judge, Kozhikode reversing the judgment and decree of learned First Additional Munsiff, Kozhikode in O.S. No. 413 of 2005. Respondent -plaintiff, it is not disputed is engaged in business in the shop room described in the plaint schedule and belonging to the appellant -defendant. Respondent claimed that he took that shop room on rent on 01.12.2004, the monthly rent being Rs. 1,500/ - and his having paid Rs. 30,000/ - by way of advance. He claimed that he is a tenant of the shop room entitled to the protection of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, Act 2 of 1965), but the appellant is attempting to forcibly evict him from the shop room. Hence he prayed for a decree against forcible eviction.

(2.) APPELLANT while admitting that respondent is doing business in the shop room claimed that there is no rental arrangement between them. Instead by Ext. B1, agreement of licence dated 01.11.2004 respondent was permitted to occupy and use the shop room as a licensee for doing business subject to the terms and conditions provided in Ext. B1. Permission was granted for 11 months the licence fee being Rs. 16,500/ -. As requested by the respondent, he was allowed to pay that amount at the rate of Rs. 1,500/ - per month. Rs. 30,000/ - was received as security for due performance of the terms and conditions of the agreement. According to the appellant, respondent has paid the licence fee only upto June, 2005 and defaulted payment thereafter. Thus appellant got the right to evict the respondent from the shop room. Appellant also made a counter claim for a decree for mandatory injunction to direct the respondent vacate the shop room and pay damages for use and occupation at the rate of Rs. 1,500/ - from 01.11.2005. Respondent answered the counter claim by repeating his assertion that he is a tenant of the shop room.

(3.) RESPONDENT challenged dismissal of the suit and the decree on the counter claim in A.S. No. 109 of 2006. The first appellate court after referring to the various circumstances came to the conclusion that though Ext. B1 is executed by the respondent in favour of the appellant, the transaction is one of lease, respondent is entitled to the protection of Act 2 of 1965 and consequently is entitled to a decree for injunction against forcible eviction. Accordingly, the suit was decreed and the counter claim was dismissed. That judgment and decree are under challenge in this Second Appeal on the following substantial questions of law: