Dismissed

Prince Kazmi v. Sandeep Khaturia

Rajasthan HC28 Mar 2023CR/84/2022

Case brief

AI extract

What is this about?

High Court of Rajasthan dismissed a revision petition challenging the dismissal of an Order VII Rule 11 CPC application. The Court held that determining if a document is a lease or leave and licence agreement requires evidence and cannot be decided at the plaint stage under Order VII Rule 11, CPC, thereby upholding the impugned order while noting procedural irregularities. Subject: Civil Procedure

What did the court decide?

Revision petition dismissed; impugned order upheld; stay petition and pending applications disposed of.

Prince Kazmi Vs Sandeep Khaturia — Landlord and Tenant | Rajasthan HC (2023)

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[2023/RJJD/007388]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 84/2022

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Prince Kazmi S/o Late Noushah Husain Kazmi, Aged About 47 Years, R/o Mohalla Shekhzadgan, Town Purkazi, Tehsil And Distt. Muzaffar Nagar, Through Special Power Of Attorney Holder Smt. Shanta Prince D/o Jawalu Ram Juneja, Aged About 46 Yerars, R/o 305, Siddhi Vinayak Complex, Sector No. 14, Udaipur, Rajasthan.

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----Petitioner

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Versus

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Sandeep Khaturia S/o Late Ramchandra Ji Khaturia, R/o 22-J, Shakti Nagar, Udaipur.

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Smt. Kavita Khaturia W/o Late Ramchandra Ji Khaturia, R/o 22-J, Shakti Nagar, Udaipur.

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Mukesh Khaturia S/o Late Ghanshyamdas Ji Khaturia, R/o 6-B/1105, Saffire Heights, Lokhand Wala Township, Akurali Road, Kandiwali, Mumbai- 400101 (Maharastra).

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----Respondents

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For Petitioner(s)	: Mr.	DeelipKawadia
For Respondent(s)	: Mr.	Narendra Thanvi
	Mr.	Mahendra Thanvi

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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28th/03/2023

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The present revision petition has been filed by the petitionerdefendant assailing order dated 09.05.2022 passed by the Court of Additional District Judge No.1, Udaipur whereby an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure as preferred by the petitioner-defendant has been dismissed.

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The application under Order VII Rule 11, CPC had been preferred with the submission that the agreement dated 17.03.2016 entered into between the parties although titled as ‘Leave and Licence Agreement’, was in fact a ‘Lease’ and therefore, the suit before the Civil Court was not maintainable. It had been prayed that the agreement being a lease agreement, any dispute arising out of the said agreement would be amenable

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to the jurisdiction of the Rent Tribunal in terms of the Rajasthan Rent Control Act, 2001 only and the jurisdiction of the Civil Court would specifically be barred.

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The application of the defendant has been rejected by the learned Court below firstly , with a finding that prima facie the agreement as entered into between the parties seems to be a ‘Leave and Licence Agreement’; secondly , the proceedings were at the stage of defendant evidence and application under Order VII Rule 11, CPC at that stage, with the submission that intention of the parties vide the agreement/lease deed was to enter into a relationship of landlord- tenant cannot be accepted and thirdly , an application under Order VII Rule 11, CPC had been preferred by the defendant earlier too on 04.01.2018 and the same was rejected on 13.03.2018.

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Learned counsel for the petitioner submitted that the learned Court below erred in reaching to a finding regarding the agreement in question without even going into the nature of the document. Learned counsel submitted that while considering the application under Order VII Rule 11, CPC, the Court considered the written statements as well as the evidence as led by the plaintiffs which is a fundamental error as the same could not have been considered while deciding an application under Order VII Rule 11, CPC. A bare perusal of terms and conditions of the agreement as entered into between the parties, would make it clear that the same was a ‘lease agreement’ and not a ‘Leave and Licence Agreement’ as, vide the said agreement, the exclusive possession of the premises was handed over to the defendant. Further, the agreement was got registered by the plaintiffs on the

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registration fee payable for a ‘lease agreement’ and not for a ‘Leave and Licence Agreement’ which fact also proves that the intention of the plaintiffs also was to create a lease agreement and not a Leave and Licence Agreement. Regarding the earlier application under Order VII Rule 11, CPC having been filed and been rejected, learned counsel submitted that the same would not operate as res judicata as vide the earlier application, the objection only qua the Court fees was raised. Regarding filing of the application at the stage of the defendant evidence, counsel submitted that it is the settled proposition of law that application under Order VII Rule 11, CPC can be filed at any stage and the same cannot be rejected on the ground of being filed at a later stage. Learned counsel submitted that the law on the point is very clear that even if the objection regarding the suit being barred by any law is not raised by the parties, the Court can suo moto take cognizance of the same and can reject the suit on the said ground.

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In support of his submissions, learned counsel for the petitioner relied upon the following judgments:-

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1. R.K. Roja vs. U.S. Rayudu and Ors.; (2016) 14 SCC 275

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2. C.M. Beena and Ors. vs. P.N. Ramachandra Rao; (2004) 3 SCC 595

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3. Associated Hotels of India Ltd. vs. R.N. Kapoor; AIR 1959 SC 1262

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4. Sushil Kumar Mehta vs. Gobind Ram Bohra (Dead) through his Lrs.; (1990) 1 SCC 193

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Per contra, learned counsel for the respondents submitted that for adjudication of an application under Order VII Rule 11, CPC, the Court is required to consider only the plaint as preferred

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by the plaintiff and at the most the documents annexed with the plaint which forms the part of the plaint. Learned counsel submitted that a bare reading of the plaint as well as the agreement annexed with the plaint makes it clear that the document as executed by the parties was a ‘Leave and Licence Agreement’ and the intention of the parties which can be summed up from the document is clearly to enter into a Leave and Licence Agreement. He relied upon Clauses 13 & 15 of the agreement which have been relied upon even by the learned trial Court while reaching to a prima facie finding that the document was a Leave and Licence Agreement. Learned counsel further submitted that the objection as taken by the defendant vide the application under Order VII Rule 11, CPC at the stage of defendant evidence was never raised earlier at any point of time and therefore also, the same was rightly not entertained by the Court below. He submitted that the objection, if any, regarding the nature of the document was required to be raised by the defendant in his written statement at the first instance but the same was never raised and therefore, the Court had no occasion to enter into the adjudication on the nature of the document. The objection, if any, can, at the most be termed to be a defence of the defendant and the same can be decided by the Court only after taking into consideration the evidence as led by the parties. The whole issue involves the interpretation of a document which, by any stretch of imagination, cannot be made within the perview of Order VII Rule 11, CPC.

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In support of his submissions, learned counsel for the respondents relied upon the following judgments:

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1. Associated Hotels of India Ltd. vs. R.N. Kapoor; AIR 1959 SC 1262

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2. Francis vs. Smt. Sarada (D) & Anr.; AIR 2004 Kerala 187

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3. Bhagwan Das vs. Goswami Brijesh Kumarji & Ors.; AIR 1983 Rajasthan 3

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Heard learned counsel for the parties and perused the material available on record.

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To enter into the adjudication of the present dispute, the first relevant aspect is as to what is the scope of the Court under Order VII Rule 11 of the Code of Civil Procedure. Order VII Rule 11(d), CPC provides for a plaint to be rejected if the suit appears from the statement in the plaint to be barred by any law. The law on the point is well settled that while considering an application Order VII Rule 11, CPC, the Court has to restrict itself to the plaint and to the documents on basis of which the plaint has been preferred. It is not in dispute that the present suit is completely based on the agreement entered into between the parties titled as ‘Leave and Licence Agreement’. The complete plaint as preferred by the plaintiffs mentions the agreement to be a ‘Leave and Licence Agreement’. The dispute as raised by the defendant before the Court is that the said document is not a ‘Leave and Licence Agreement’ but is a ‘lease agreement’. The principles of law governing the dispute as to whether a document would be a Leave and Licence Agreement or a lease agreement, are no more res integra. In the case of Associated Hotels of India Ltd. (supra), the Hon'ble Apex Court laid down the propositions to be considered to ascertain whether a document is a lease document or a leave and Licence document.

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“The following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties – whether they intended to create a lease or a licence; (3) if the document creates 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 (4) 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. ”

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In the case of C.M. Beena (supra), it was held as under:

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“A few principles are well settled. User of the terms like ‘lease’ or licence’, ‘lessor’ or ‘licensor’, ‘rent’ or ‘licence fee’ are not by themselves decisive of the nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intension. ”

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A bare perusal of the ratio as laid down by the Hon'ble Apex Court on the issue makes it clear that, to decide a controversy whether a document is a lease or a Leave and Licence Agreement, the basic fact to be taken into consideration is the intention of the parties and the conduct of the parties before and after the creation of the relationship. The conduct of the parties before and after entering into the agreement, the surrounding circumstances and the intention of the parties cannot, in the opinion of this Court, be summed up by a bare reading of the document/agreement. To reach to a conclusion on the above aspects, a complete reading of the plaint, written statement as

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well as the evidence as led by the parties and the communications, if any, entered into between the parties would be a relevant aspect. The same cannot be summed up by a mere reading of the plaint or the document/agreement simpliciter. The issue therefore, requires a thorough consideration based on the evidence and also the consideration of the defence as raised by the defendant. Evidently, the defence of the defendant or the version of the defendant cannot be considered while deciding an application Order VII Rule 11, CPC. Therefore, in the specific opinion of this Court, the nature of the document could not have been considered by the Court on an application Order VII Rule 11, CPC and the same could be concluded only after the consideration of the defence of the defendant. In view of the fact that the conclusion regarding the nature of the document could not have been reached only by a reading of the plaint, it cannot be held that the same was a lease agreement and that the Civil Court did not have the jurisdiction to hear the present suit and that the suit was barred by any law.

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As held by the Hon'ble Apex Court, even if a document prima facie talks of the exclusive possession of the property to be given to a party and he is considered to be a tenant, the circumstances may be established which negative the intention to create a lease. Meaning thereby, the issue can be decided only after the fact being established by the parties supported by documentary as well as oral evidence on the point. Therefore, the finding as reached by the learned Court below cannot be interfered with so far as it has concluded that the document in question prima facie established the same to be a Leave and Licence Agreement. The

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same is a prima facie finding by the learned Court below and can be negated subsequently by any of the parties after leading evidence on the aspect. By all means, the same could not be a ground to reject the suit under Order VII Rule 11, CPC.

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So far as the rejection of the application by the learned Court below on the ground that the suit was at the stage of the defendant evidence and further that an application under Order VII Rule 11, CPC had earlier been rejected by the Court, cannot be held to be tenable. As is the settled proposition of law, an application under Order VII Rule 11, CPC can be filed at any stage of the suit and further, the earlier application under Order VII Rule 11, CPC was neither filed on the ground of the suit being barred by law nor was the same rejected on the said ground. The objection in the earlier application was regarding the Court fees and therefore, the rejection of the same would not operate as a bar to the present application.

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Although the rejection of the application of the defendant on these two grounds cannot be upheld, the same is upheld on the reasons discussed in the preceding paras.

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In view of the overall analysis, the present revision petition

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is dismissed .

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The stay petition and all the pending applications stand disposed of.

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(REKHA BORANA),J

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100-T.Singh, Sachin/-

Prince Kazmi v. Sandeep Khaturia

Case brief

What is this about?

What did the court decide?

Prince Kazmi v. Sandeep Khaturia

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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