Partly allowed

P.Muhammed Koya, v. P.Shoba

Kerala HC25 Feb 2019RCRev./63/2019

Case brief

AI extract

What is this about?

Kerala HC held that an agreement creating possession of a shop room transferred an interest in rem, qualifying it as a lease rather than a mere licence. The revision petition was dismissed as the courts below correctly upheld their jurisdiction.

What did the court decide?

Revision petition dismissed; tenant granted seven months to vacate premises upon filing an undertaking and depositing arrears.

P.Muhammed Koya, Vs P.Shoba — Kerala HC (2019) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940

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RCRev..No. 63 of 2019

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AGAINST THE JUDGMENT IN RCA 219/2016 OF THE RENT CONTROL APPELLATE AUTHORITY (VTH ADDL.DISTRICT COURET), KOZHIKODE DATED 05-07-2018

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AGAINST THE ORDER IN RCP 76/2014 of ADDITIONAL MUNSIFF COURT-II, KOZHIKODE DATED 05-07-2016

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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P.MUHAMMED KOYA, AGED 59 YEARS S/O.KUNHIKAMMU, RESIDING AT MATHOTTAM, NADUVATTOM, KOZHIKODE TALUK, ADDRESS AS SHOWN IN THE RENT CONTROL PETITION, JANAPRIYA STORE, NEAR MAVELI STORE, PANNIYANKARA, KALLAI POST, KOZHIKODE-673003.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.E.C.AHAMED FAZIL SRI.P.C.MUHAMMED NOUSHIQ

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RESPONDENT/RESPONDENT/PETITIONER:

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P.SHOBA, AGED 57 YEARS W/O.P.PUSHPANGATHAN, 24/1009, PACHAD HOUSE, KALOOR ROAD, VALYANAD, KOZHIKODE-673003.

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BY ADV. SRI.BONNY BENNY

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

RCR63/2019

O R D E R

K.Harilal, J.

The revision petitioner is the tenant and the

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respondent is the landlord in RCP 76/2014 on the files of the Rent Control Court-II, Kozhikode. (The

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parties are referred to as in the rent control petition.)

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The petitioner filed the aforesaid rent control petition,

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seeking an order of eviction under section 11(3) of

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the Kerala Buildings (Lease and Rent Control) Act (for

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short, the Act). According to the petitioner, she needs

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the petition schedule building for starting a provision

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store. She has no other building of her own to start

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the said business and several other vacant buildings

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are available in the locality for shifting the business of

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RCR63/2019

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the respondent from the tenanted premises. Hence,

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she filed the rent control petition, seeking an order of

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eviction.

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The respondent resisted the claim for eviction contending that the need projected in the petition is

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not bona fide, but it is a ruse for eviction only. He is depending mainly on the income derived from the business in the tenanted premises and no other

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vacant buildings are available in the locality and he is

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entitled to get protection under section 11(3) of the

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Act.

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On the rival pleadings, both parties adduced evidence

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and after considering the evidence on record, the Rent Control Court allowed the rent control petition on a

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finding that the need projected in the petition is bona

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fide. In appeal, the Appellate Authority also affirmed

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RCR63/2019

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the aforesaid finding and dismissed the appeal. Thus,

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the legality and propriety of the concurrent findings,

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whereby the Rent Control Court allowed the rent control petition and the Appellate Authority dismissed

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the appeal, have come up in revision before us.

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Learned counsel for the respondent advanced

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arguments mainly contending that the courts below failed to consider the maintainability of the rent control petition. According to the learned counsel for

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the respondent, the transaction between the petitioner and the respondent was under a licence

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agreement and thereby, the Rent Control Court had

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no jurisdiction to entertain the rent control petition

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itself. But, the courts below failed to consider the

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maintainability of the rent control petition . When the

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Rent Control Court failed to consider the

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RCR63/2019

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maintainability of the rent control petition, the

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Appellate Authority ought to have remanded the case

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back to the Rent Control Court, to consider the maintainability of the rent control petition, the

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learned counsel contends.

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Per contra, the learned counsel for the petitioner

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advanced arguments to justify the concurrent findings of the courts below. According to the learned counsel

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for the petitioner, in the counter statement, there was

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no contention to the effect that the transaction

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between the petitioner and the respondent was under

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a licence agreement and on the other hand, in the counter statement, the respondent himself had admitted that he is a tenant, who has been paying

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monthly rent to the petitioner as a tenant. In the

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absence of any contention raising the status of a

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RCR63/2019

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licensee, there was no occasion to raise an issue as to

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the maintainability of the rent control petition, the

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learned counsel contends. In order to substantiate

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the said contention, the learned counsel drew our

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attention to paragraph 3 in the counter statement.

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In view of the arguments at the bar, the sole question that arises for consideration in this revision petition is, whether there is any illegality or impropriety in the findings of the Appellate Authority, whereby the Appellate Authority rejected the contention that the respondent is a licensee and thereby the rent control

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petition was not maintainable before the rent control

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court.

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Firstly, we have examined the pleadings in the rent

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control petition and the counter statement filed by the

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respondent. It is true that in the rent control petition,

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RCR63/2019

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it is specifically stated that the tenancy has

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commenced under a lease-licence agreement dated

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20.9.2011 for 11 months after accepting an advance

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amount of Rs.45,000/- and under that agreement, possession of the entire shop room was given to the respondent for starting the business. Further, it is pleaded that the term of agreement was for 11 months which ended in August, 2012 and thereafter

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the petitioner has issued a notice to the respondent

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demanding surrender of the petition schedule shop

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room.

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Coming to the counter statement filed by the respondent, in paragraph 3, the respondent admitted that the tenanted premises has been taken by him

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under a lease agreement dated 20.9.2011, after

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paying an amount of Rs.45,000/- as advance to the

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RCR63/2019

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petitioner and he took possession of the shop room

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under the said agreement and thereafter he has been

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in occupation of the tenanted premises. Going by Ext.B1 agreement, it could be seen that in Ext.B1, the nomenclature shows both expressions, 'lease' and

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'licence'. Thus, the nomenclature of the document is so confusing, because, the term 'lease and licence' are used in the agreement. There is a vast difference between lease and licence. It is trite law that even if

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the term 'licence' is used in a rent deed, it can be a lease, if the nature of conveyance under the deed is a lease arrangement. In short, the nomenclature of the agreement is not decisive or determinant, but what is decisive and determinant is the nature of conveyance

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of the premises under the agreement. On an analysis of the nature of conveyance under Ext.B1 agreement,

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we find that what was conveyed under the agreement

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is possession of the shop room to the respondent. It

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is not a permission to do something in the building.

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On the other hand, it created an interest in the building.

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At this juncture, the distinction between lease

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and licence assumes much significance and relevance. Lease is not a mere contract, but envisages and transfers an interest in the demised property by creating a right in favour of the lessee in rem. But,

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licence only makes an action lawful without which it

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would be unlawful, but does not transfer an interest

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in favour of the licensee in respect of the property. If

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the agreement between the parties shows an intention

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to create an interest in the property in favour of the grantee, what results is said to be a lease. Licensee,

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RCR63/2019

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on the other hand, does not create an interest in

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property.

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When we analyse the agreement, in view of the distinction between lease and licence, we find that what was conveyed under the B1 agreement is the possession of the tenanted premises to the respondent and thereby an interest is created in favour of the respondent by the agreement. There is no recital in the agreement permitting the respondent to do any particular act without which it would be unlawful. Moreover, the agreement was created for

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11 months with a renewal clause. Thus, on an analysis of the agreement, it can be held unambiguously that the agreement is a lease agreement only, even though in the pleadings it is

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stated as lease-licence agreement.

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RCR63/2019

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The above view is supported by the pleadings of

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the respondent in his counter statement. In the

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counter statement, the respondent himself has no

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case disputing the nature of transaction as lease.

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Moreover, he himself positively contended that he is a lessee under the agreement dated 20.9.2011. In the absence of any such contention raising licence, we do

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not find fault with the Rent Control Court in not

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raising an issue. An issue arises only when a fact is asserted by one party and denied or disputed by the opposite party. If there is no denial or ispute, the court is not liable to raise an issue.

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Going by the impugned judgment passed by the

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Appellate Authority, we find that in the appellate court, only the respondent raised a contention that

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the transaction between the petitioner and the

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RCR63/2019

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respondent was licence agreement and not a lease

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agreement. It is trite law that contentions without

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pleadings need not be looked into. The learned

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counsel for the respondent contended that even if the tenant has admitted that he is a tenant and not a licensee, that admission does not confer jurisdiction to the court. In order to substantiate the said contention, the learned counsel cited the decision of this Court in RCR.No.363/2018. We have gone through the aforesaid decision and we find that in view of the facts involved in the decision cited, the proposition laid down in that decision cannot be applied to the facts of the instant case, where the facts are entirely different.

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Here we have meticulously gone through the disputed

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agreements and we find that what was conveyed by

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RCR63/2019

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the agreement is the possession of the tenanted

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premises to the respondent and not the right to do

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any particular act and the admission of the tenant in the counter statement is taken as an approval of the

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findings laid down by us. In short, we find that Ext.A1

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agreement itself is a lease agreement and not a licence agreement. Therefore, there is no ground to

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remand the case back to the Appellate Court or the Rent Control Court. We do not find any kind of illegality or impropriety in the findings, whereby the courts below have rejected the contentions raised by

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the tenant in the appeal.

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In the result, this RCR will stand dismissed. The

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learned counsel for the revision petitioner/tenant

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prayed for sometime to vacate the tenanted premises.

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RCR63/2019

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Having regard to the submissions at the bar, the

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revision petitioner/tenant is given seven months' time

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to vacate the tenanted premises on the following conditions :-

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1). The revision petitioner/tenant shall file an

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affidavit, within two weeks from the date of receipt of

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a copy of this order, before the Execution Court or the

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Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within seven months from the date of

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receipt of a copy of this order.

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The revision petitioner/tenant shall deposit the

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entire arrears, if any, within one month from the date

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of receipt of a copy of this order, before the Execution

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Court or the Rent Control Court, as the case may be,

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RCR63/2019

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and shall continue to pay the rent without default.

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In the event of failure to comply with any of the

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conditions stated above, the time granted to vacate the premises will stand automatically vacated and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order.

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Sd/K.HARILAL JUDGE Sd/ANNIE JOHN

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JUDGE

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sl.

P.Muhammed Koya, v. P.Shoba

Case brief

What is this about?

What did the court decide?

P.Muhammed Koya, v. P.Shoba

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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