ORIENTAL HOTELS LIMITED OWNING TAJ COROMANDEL HOTEL Vs. PARAMESWARI DEVI PROPRIETRIX SANTHOSH JEWELLERS MADRAS

JUDGEMENT

(1.) THE Plaintiff/respondent herein has obtained under a deed of agreement the privilege to keep and maintain a shop and use the premises of the defendant/appellant for the said purpose. THE agreement between the defendant/appellant described as the licensor on the one hand and the plaintiff/respondent described as the licensee on the other hand has got recitals to the effect that the licensor is the owner of the Taj Coromandal Hotel, that the licensee desired to obtain the privilege and accordingly approached and applied to the licensor for permission of the licensor for using, keeping and maintaining the shop under the control and supervision and administration of the licensor with the object of providing amenities and faculties to the residents, customers and visitors of the hotel. THE terms and conditions incorporated in the agreement are as follows:

(2.) THE plaintiff/respondent has moved this Court for a declaration inter alia that she is entitled to be in possession and enjoyment of the suit property as a tenant and to continue to carry on her business and consequentially has sought the relief of permanent injunction against the defendant/appellant from interfering with her occupation and possession of the suit property. This, she has done because she has been served with a letter by the defendant/appellant to vacate the premises and according to her case, except by following the due procedure as prescribed by law, the defendant/appellant cannot evict her. She has applied for a temporary injunction and her application for the said relief has been granted by the trial Court. THE defendant has preferred this appeal.

(3.) THE law on the subject has been stated by now so candidly by the Supreme Court in its judgment that today, it will be an exercise wholly unnecessary for stating the law that to ascertain whether a document created a licence or lease, the substance of the document must be preferred to the form and the real test is the intention of the parties whether they intended to create a lease or a licence. If the document created an interest in the property, it is a lease, but if it only permits another to make use of the property of which the legal possession continues with the owner it is a licence and if under the document, a party gets exclusive possession of the property prima facie, he is considered to be a tenant, but circumstances may be established, which negative the intention to create a lease.