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CASE NO.:

Appeal (civil) 6203 of 1999

PETITIONER:

Achintya Kumar saha

RESPONDENT:

M/s Nanee Printers and Others

DATE OF JUDGMENT: 30/01/2004

BENCH:

P.VENKATARAMA REDDI & S.H. KAPADIA.

JUDGMENT:

JUDGMENT

Kapadia, J.

Ashok Kumar Bose (since deceased) was the owner of the

premises No. 119/1A, Harish Mukherjee Road, Bhowanipore, Calcutta

\026 700 026. He died leaving behind him his wife Smt. Madhuri Bose,

(since deceased), Shri Ajoy Kumar Bose (son) and a daughter. Ashok

Kumar Bose left a Will dated 1st March, 1974 bequeathing all his

properties to his widow Smt. Madhuri Bose for the period of her

natural life, but with no right to alienate the property and thereafter to

his son Ajoy Kumar Bose (respondent No. 4 herein). On 5th July, 1976

Smt. Madhuri Bose executed an agreement of licence for 11 years in

favour of M/s Nanee Printers, a proprietary firm carried on by one

Ranaji Ganguly (respondent Nos. 1 and 2 herein). On 10th October,

1980, the appellant herein bought the entire property No. 119/1A

including the suit premises consisting of a Printing Press in a Katcha

shed from Ajoy Kumar Bose (respondent No.4) to which the

deceased Smt. Madhuri Bose was a confirming party. On 7th July,

1981, the present appellant filed a Title Suit for eviction against

respondent Nos. 1 and 2 herein and sought possession of the suit

premises. In the Title Suit, a declaration was sought to the effect that

M/s Nanee Printers were in unauthorised occupation of the suit

premises as trespassers on revocation of the leave and licence

agreement dated 5th July, 1976. M/s Nanee Printers contested the Title

Suit. In the written statement, they alleged that they were monthly

tenants in the suit premises; that the purported agreement dated 5th July

1976 was a tenancy in disguise of a licence; that Shri Ajoy Kumar

Bose (respondent No. 4 herein) was a consenting party to the

agreement dated 5th July, 1976 and since respondent No. 2 herein was

in need of accommodation, he had no option but to sign the agreement

dated 5th July, 1976. By the written statement, M/s Nanee Printers

denid that Smt. Madhuri Bose (since deceased) had no right to let out

the suit premises on rent. It was further alleged by M/s Nanee Printers

that under the agreement dated 5th July 1976, M/s Nanee Printers were

permitted to install electricity and telephone in the premises and under

the circumstances they were tenants in respect of the premises. In the

alternative it was alleged that even if they were held to be licensees,

the said licence was irrevocable and therefore, the suit was liable to be

dismissed with costs.

In the said suit, the following issues were framed by the trial

court:

"1. Is this suit maintainable?

2. Has the suit been properly valued?

3. Has the Court fees been paid sufficient?

4. Has this Court jurisdiction to try the suit?

5. Are the defendant Nos. 2 and 3 thika tenants in respect of

the suit premises?

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6. Is there any relation of landlord and tenant between the

parties?

7. Are the defendants tenants or licensees in respect of the

suit premises?

8. If the defendants nos. 2 to 3 are found to be licensees,

whether the said license is revocable or not?

9. Is the plaintiff entitled to get a decree as prayed for?

10. To what other reliefs, the plaintiff is entitled?"

By judgment and order dated 29th August 1992, the trial Court

came to the conclusion that respondent Nos. 1 and 2 herein were

licensees and not tenants; that the licence was for 11 years for running

a Printing Press with liberty to the licensor to renew the licence for

further 11 years and therefore, respondent Nos. 1 and 2 were not

trespassers as alleged by the appellant (plaintiff) herein. The trial

Court further found that Shri Ajoy Kumar Bose (respondent No.4)

was fully aware of the agreement dated 5th July, 1976 between his

mother Smt. Madhuri Bose on one hand and respondent Nos. 1 and 2

herein on the other hand and that he had consented to the agreement

dated 5th July, 1976 by his conduct. However, the trial court found

that respondent Nos. 1 and 2 have failed to prove monthly tenancy.

The trial court further found that the licence was irrevocable as

respondent Nos. 1 and 2 had raised a permanent construction and

extension over the existing structure by 50 feet with the consent of

Smt. Madhuri Bose and her son respondent No.4. The trial court

further found that Shri Ajoy Kumar Bose (respondent No. 4) was an

important witness and yet he was not examined by the appellant

herein. In the circumstances, the trial court dismissed the Title Suit

filed by the appellant.

Being aggrieved by the judgment and order of the trial court,

the appellant herein filed an appeal before the 9th Additional District

Judge, Alipore vide Title Appeal No. 132 of 1993. By judgment and

order dated 10th May 1996, the Appellate Court allowed the appeal

holding that Smt. Madhuri Bose had a limited ownership right and she

was not competent to create any right in property and transfer the

same in favour of respondent Nos. 1 and 2. The first Appellate Court

further found that there was no evidence of a irrevocable licence in

favour of respondent Nos. 1 and 2 and, therefore, the judgment of the

trial court was reversed and a decree of eviction was passed in favour

of the appellants herein and against respondent Nos. 1 and 2 herein.

Although the first Appellate Court allowed respondent Nos. 1 and 2 to

argue on the question of tenancy, the Court did not adjudicate upon

that question.

Being aggrieved by the judgment and order of the first

Appellate Court dated 10th May 1996, respondent Nos. 1 and 2 herein

preferred an appeal before the High Court being Second Appeal No.

510 of 1996 inter alia on the ground that the first Appellate Court had

failed to adjudicate the question of tenancy; that the first Appellate

Court had failed to appreciate that the licence in question was tenancy

in disguise. At this stage, it may be noted that in the Second Appeal

preferred by respondent Nos. 1 and 2 before the High Court, the plea

of irrevocable licence was given up. At this stage, it may be pointed

out that during the pendency of the appeal before the High Court,

respondent Nos. 1 and 2 herein had moved an application under

Section 107 Civil Procedure Code (C.P.C.) and under Order XLI Rule

23 C.P.C. for amendment of the written statement filed by respondent

Nos. 1 and 2 in the trial court. By judgment and order dated 31st

January 1997, the application for amendment of the written statement

was dismissed by the High Court pending the hearing and final

disposal of the Second Appeal.

By judgment and order dated 16th September, 1998 passed by

the High Court in Second Appeal No. 510 of 1996, the High Court

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came to the conclusion that since exclusive possession of the suit

premises was given for business purposes in a residential area for

consideration to respondent Nos. 1 and 2 with a right to make further

construction, the agreement dated 5th July, 1976 was a tenancy and not

a licence. The High Court further found that under the agreement

dated 5th July 1976, respondent Nos. 1 and 2 were entitled to bring in

electricity and telephone connection which also indicated that the

object of the agreement was to create a tenancy. The High Court

further found that the purported licence was for 11 years with

authority given to the licensor Smt. Madhuri Bose to renew the

licence for further 11 years also indicated that the agreement was that

of a tenancy and not a licence. The High Court came to the

conclusion that the agreement was given a nomenclature of leave and

licence in order to avoid the provisions of West Bengal Premises

Tenancy Act, 1956 (hereinafter referred to as "the said Act 1956"). In

the circumstances, the High Court came to the conclusion that the suit

instituted by the appellants for eviction of respondent Nos. 1 and 2 as

trespassers was not maintainable. That in this case, respondent No. 4

was an important witness and yet he was not examined by the

appellant and in the circumstances, the First Appellate Court ought to

have drawn an adverse inference against the appellant. The High

Court further observed that even municipal taxes were payable and

paid by respondent Nos. 1 and 2 which circumstance supported the

case of tenancy in favour of respondent Nos. 1 and 2. While allowing

the appeal, the High Court further observed that the tenancy for 11

years came within the purview of the said Act 1956 and in the

absence of notice under Section 13(6)(g) of the said Act 1956 and in

the absence of any of the grounds of eviction under Section 13(1) of

the said Act 1956, the impugned decree was a nullity. Accordingly,

the High Court allowed the Second Appeal No. 510 of 1996 filed by

respondent Nos. 1 and 2 and set aside the judgment and order passed

by the First Appellate Court and dismissed the suit filed by the

appellant herein. Being aggrieved by the judgment and order passed

by the High Court, the appellant has come to this Court by way of

special leave.

Before coming to the arguments, we may point out that in cases

where courts are required to consider the nature of transactions and

the status of parties thereto, one cannot go by mere nomenclatures

such as, licence, licensee, licensor, licence fee etc. In order to

ascertain the substance of the transaction, we have to ascertain the

purpose and the substance of the agreement. In such cases, intention

of the parties is the deciding factor. In order to ascertain the intention,

we have to examine the surrounding circumstances including the

conduct of the parties. In the present case, the High Court was right in

examining the terms of agreement coupled with the circumstances

surrounding the agreement in question like exclusive possession of the

premises being given to respondent Nos. 1 and 2 for monetary

consideration for 11 years with a clause of renewal of the licence for

further 11 years; payment of municipal taxes by respondent Nos. 1

and 2, the rent receipts issued by Smt. Madhuri Bose, the premises

being let out for business purposes in a residential locality and

conduct of the plaintiffs in not examining Ajoy Kumar Bose

(respondent No.4) who is held to have consented to the agreement in

question. All the above circumstances taken together show that

respondent Nos. 1 and 2 were not trespassers. They show that the

agreement was a tenancy in disguise of a licence.

Mr. Sanyal, learned senior counsel for the appellant contended

that a bare look at Section 100 C.P.C. shows that the jurisdiction of

the High Court to entertain the second appeal is confined to appeals

which involve substantial question of law specifically set out in the

Memo of Appeal and formulated by the High Court. He contended

that in the present case no such question has been set out in the Memo

of Appeal and nor is the question so formulated and the High Court

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was, therefore, not justified in entertaining the Second Appeal. He

further contended that in second appeal, the High Court proceeded to

entertain a new plea of tenancy under the West Bengal Premises

Tenancy Act, 1956 and even rendered its decision on the said point

without following the mandatory provisions of Section 100 C.P.C. He

submitted that tenancy under the said Act 1956 was never in issue. He

submitted that the judgment of the High Court was illegal and in

excess of its jurisdiction for deciding a new point taken up for the first

time in second appeal and, therefore, not sustainable and deserves to

be set aside. In this connection, reliance was placed by him on the

judgment of this Court in the case of Kshitish Chandra Purkait vs.

Santosh Kumar Purkait and Others reported in (1997) 5 SCC 438.

Mr. Sanyal further contended that on 6th April 1992 an application

was moved by respondent Nos. 1 and 2 to amend the written

statement pending the hearing and final disposal of second appeal

before the High Court which was expressly rejected by the High Court

vide its order dated 31st January 1997. In this connection, it was

pointed out that respondent Nos. 1 and 2 had applied for amendment

of the written statement vide application dated 6.4.1992 in the Title

Suit of 1981 and by that application they attempted to raise a new plea

of statutory tenancy under the said Act 1956 which was rejected by

the High Court in second appeal, and yet by the impugned judgment,

the High Court has held that respondent Nos. 1 and 2 were the tenants

under the said Act 1956. Mr. Sanyal, therefore, contended that the

High Court had erred in entertaining a new plea for the first time in

second appeal and that it had erred in rendering a decision on a new

point without even prior notice thereof to the appellants which was

not permissible under Section 100 C.P.C. and consequently, the

impugned judgment deserves to be set aside. Learned counsel for the

appellant further contended that the High Court had erred in invoking

Section 103 C.P.C. in this case. He contended that section 103 C.P.C.

had no application to the facts of this case as respondent Nos. 1 and 2

had given up the plea of tenancy (issue No. 6) before the trial Court.

He further contended that the trial court in the Title Suit had

categorically come to the conclusion that respondent Nos. 1 and 2

were not the tenants of the suit premises and despite that declaration

no cross objection was filed before the First Appellate Court. He

further pointed out that even the plea of irrevocable licence was given

up by respondent Nos. 1 and 2 in second appeal before the High

Court. Mr. Sanyal, learned senior counsel for the appellant contended

that in order to attract section 103 C.P.C., the appellate Court must be

satisfied that an issue necessary for the disposal of the appeal had

arisen before the lower appellate court which has not been decided by

the lower appellate court or which has been wrongly decided by the

said Court. In the circumstances, he submitted that the High Court

had erred in invoking section 103 C.P.C. in this case.

We do not find any merit in the arguments advanced on behalf

of the appellant. The main issue around which the entire case evolves

is : whether the agreement dated 5.7.1976 was a license or a tenancy.

This issue was there before the trial court and the agreement was held

to be a license. It was there also before the lower Appellate Court but

it was not adjudicated upon. When the core issue is not adjudicated

upon, it results in a substantial question of law under section 100

C.P.C. In the case of Santosh Hazari v. Purushottam Tiward (Dead)

by Lrs. reported in AIR 2001 SC 965, it has been held that whether a

question of law is a substantial question of law in a case will depend

on facts and circumstances of each case, the paramount consideration

being the need to strike a balance between obligation to do justice and

necessity to avoid prolongation of any dispute. In that matter, this

Court found that an important issue had arisen for determination

before the first appellate court: whether dependent had made out the

case of adverse possession and whether the suit filed by the plaintiff

was liable to be dismissed as barred by time under Article 65 of the

Limitation Act 1963, which issue was decided by a cryptic order

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passed by the first appellate court and in the circumstances this Court

took the view that failure to decide the core issue gives rise to a

substantial question of law. In our view, the judgment of this Court in

the case of Santosh Hazari (supra) applies to the facts of this case.

Although the core issue of tenancy arose before the first appellate

court the same was not adjudicated upon and in the circumstances the

High Court was right in invoking Section 103 C.P.C. Moreover as

can be seen from the record, the plea of tenancy was allowed to be

argued before the first appellate court but the said point was not

adjudicated upon. Lastly, in the High Court in second appeal, this

point was argued by both sides whereupon the High Court gave its

finding to the effect that respondent Nos. 1 and 2 were tenants and

their tenancy cannot be terminated without notice under Section 13(6)

and the failure of appellant making out any of the grounds under

Section 13(1) of the said Act 1956. Hence, the judgment of this Court

in the case of Kshitish Chandra (supra) has no application. It is now

settled by the judgment of this Court in the case of V. Dhanapal

Chettiar vs. Yesodai Ammal reported in AIR 1979 SC 1745 that in

order to get a decree of eviction against the tenancy under any State

Rent Control Act, determination of a lease in accordance with the T.P.

Act is unnecessary and surplusage as the landlord cannot get the

eviction of the tenant even after such determination and the tenant

continues to be the tenant even thereafter till the landlord makes out a

case under the Rent Act. This position is also indicated by the

definition of the word 'tenant" under section 2(h) of the said Act

1956.

Lastly it has been contended on behalf of the appellant that

agreement dated 5th July 1976 has since expired by afflux of time

during the pendency of proceedings and in view of subsequent event

the High Court should have moulded the relief and granted decree for

eviction on that ground alone. We do not find any merit in this

argument. The Title Suit filed by the appellant was on the basis that

the agreement dated 5th July, 1976 was a licence which stood revoked

and on revocation the said respondent Nos. 1 and 2 became

trespassers. However, in view of the above finding of the High Court

that the said agreement dated 5th July, 1976 was a contract of tenancy

and that the said respondents were tenants, the entire substratum of the

original Title Suit falls. Hence, we do not find any merit in the above

argument.

The contention of the appellant's counsel that Issue No. 6

having not been pressed before the trial Court, the plea of tenancy

could not have been raised by the respondents is equally untenable.

Issue No. 7 is comprehensive enough to cover that point. The fact

that petition for amendment of written statement raising the plea of

statutory tenancy was rejected during the pendency of Second Appeal

cannot also be considered to be fatal to the respondents' case. The

issue whether the respondents were tenants or not was very much

alive throughout the proceedings, though the appellate Court did not

deal with that aspect. The High Court, therefore, assumed its powers

under Section 103 and found that issue against the appellant.

For the foregoing reasons, this civil appeal fails. We,

accordingly, dismiss the same, but in the facts and circumstances of

the case, direct the parties to bear their own costs throughout.