MADHU GUPTA Vs. K. T. HASSAN KOYA

JUDGEMENT

(1.) A suit for mandatory injunction to evict the defendant from the plaint schedule building was dismissed by both the Courts below finding that Ext.A2 agreement is not a licence but a lease, against which the plaintiff came up with this appeal.

(2.) The construction of Ext.A2 agreement by the courts below and whether it would constitute a lease or licence is certainly a substantial question of law for the purpose of this appeal. What makes the difference between lease and licence was elaborately considered by this Court in George Chandi and Others v. Beena and Others, 2018 4 KerLJ 1 : 2018 KHC 5252 and laid down the tests to determine lease or licence. The nomenclature of the document is not decisive. A mere permission given to hold the property or to possess the same without having a right of possession would constitute only a licence. Ext.A2 is styled as a licence. Clause (1) deals with user of the premises and its occupation for a period of 11 months. Clause (2) deals with the payment of licence fee. Clause (3) says that licence fee should be paid on or before the first day of each month. Clause (4) permits to use the premises for the business of sale of LPG gas stove. Clause (5) directs the party to keep the premises clean and tidy and not to cause any damages. Clause (6) deals with payment of electricity charges by the licensee. Clause (7) enumerates the intention of parties in clear terms that what they have intended is only a licence. Clause (8) says that in case the party wants to continue the relationship after the expiry of the period agreed, the defendant is liable to pay an enhanced licence fee at the rate of 7.5%, based on which it was submitted that no such enhancement was demanded by the plaintiff even after the expiry of 11 months and the first demand was raised only after the expiry of four years. It was also submitted that the subsequent development should also be taken into consideration for detecting the nature of relationship. When Ext.A2 is construed in its strict sense with the aid of each and every clauses incorporated therein, it is clear that exclusive possession was not handed over to the defendant. Only a permission to occupy the premises for the conduct of the business was granted. There is nothing in Ext.A2 to show that exclusive possession was handed over to the defendant/licensee so as to hold the same as a matter of right. Clauses 1 to 7 deals with various terms agreed into by the parties. Provision made in the licence deed to attend repair works by the owner and for paying electricity charges by the licensee. Clause (7) was overlooked by both the courts below which specifies in clear terms what is the intention of the parties. They intended to create only a licence. Subsequent development that the landlord had not raised the claim of enhanced licence fee for a long period may not be sufficient to alter the relationship between the parties when they opted to reduce the same into writing under Ext.A2. The parties are bound by Ext.A2. Construction of Ext.A2 would show only a licence and not a lease. The intention of parties is well evident from the various clauses (Clauses 1 to 8), especially clause (7), wherein there is an assertion regarding the relationship created under that document. It is not at all safe or advisable to take away any of the clauses in Ext.A2 so as to arrive at a different conclusion than the one intended by the parties. The duty casts on the Trial Court and the First Appellate Court to construe Ext.A2 document in its correct perspective was not properly discharged.

(3.) Yet another question also came up for consideration as to whether it is permissible to grant a decree of mandatory injunction instead of a decree of eviction or a decree of recovery of possession. The suit is for mandatory injunction seeking to evict the defendant from the plaint schedule building. Mandatory injunction by its nature embodied under Section 39 of Specific Relief Act is discretionary. The granting of mandatory injunction is a matter of judicial discretion of the court and it can be granted only in a case which falls strictly within the four corners of the provision - Section 39 of the Specific Relief Act. The two elements which govern Section 39 of Specific Relief Act, for the grant of mandatory injunction are (I) the necessity to prevent breach of an obligation by the intervention of the court and (ii) that such acts should be of that nature capable of enforcement by the court. Yet another ingredient is also available which is crucial in the matter of grant of mandatory injunction that it should be 'amenable for exercise of judicial discretion'. A relief which is not amenable for exercising judicial discretion of the Court cannot be granted by way of a mandatory injunction. It should satisfy not only breach of an obligation and the necessity of its prevention, but also the availability of judicial discretion to be exercised. A mere breach of an obligation or necessity to prevent the same alone cannot be brought under the purview of mandatory injunction unless the same is amenable for exercising discretion by the Court. The difference in the matter of grant of a decree of mandatory injunction from that of a decree of possession or eviction lies on the availability of exercise of judicial discretion. In the matter of a decree of eviction or a decree of recovery of possession, there is no scope for exercising the judicial discretion. In a suit for eviction or recovery of possession, there cannot be any exercise of judicial discretion. As such, it is not permissible to substitute a relief of mandatory injunction in the place of eviction or recovery of possession. The exercise of discretion in order to prevent breach of an obligation is the essence of Section 39 of Specific Relief Act and as such a relief which is not amenable for exercising discretion by the Court cannot be brought under the purview of mandatory injunction either in substitution or otherwise. In the matter of grant of decree of eviction and decree of recovery of possession, both are separately dealt under the Kerala Court Fees and Suits Valuation Act, 1959, apart from the provisions dealing with the grant of injunctions, on the reason that the areas which govern a relief of recovery of possession, eviction and mandatory injunction are different in its very nature.