A.P. Vasudeven v. Nirmala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 RSA NO. 12 OF 2024 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 25.11.2019 IN O.S.NO.298/2016 OF MUNSIFF MAGISTRATE COURT,PATTAMBI AGAINST THE JUDGMENT AND DECREE DATED 31.3.2023 IN A.S.NO.61/2019 OF SUB COURT, OTTAPPALAM ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` A.P. VASUDEVEN AGED 53 YEARS S/O. ADUKURUSSIPPADI KOTHA, MELEPATTAMBI P.O., NETHIRIMANGALAM AMSOM DESOM, PATTAMBI TALUK., PIN - 679306 BY ADVS. K.RAVI (PARIYARATH) G.SREEKUMAR (CHELUR) ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` NIRMALA D/O. KIZHAKEMADATHIL PADMINI AMMA,'GOKULAM' OLD COURT ROAD, PATTAMBI P.O., NETHIRIMANGALAM AMSOM DESOM, PATTAMBI TALUK, PIN - 679306 ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2024, THE COURT ON 15.1.2024, DELIVERED THE FOLLOWING: ``` ``` RSA NO. 12 OF 2024 2 ``` ## **JUDGMENT** Dated this the 15[th] day of January, 2024 Defendant in O.S.No.298/2016 on the files of Munsiff Court, Pattambi, who is aggrieved by the decree and judgment in the above suit, dated 25.11.2019 and the decree and judgment in A.S.No.61/2019 on the files of the Sub Court, Ottapalam, dated 31.3.2023, has filed this Regular Second Appeal under Section 100 r/w Order XLII and Order XLI Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter). Plaintiff in the above suit is the respondent herein. 2. Heard the learned counsel for the appellant, on admission. 3. I have perused the relevant documents placed by the learned counsel for the appellant. 4. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’, for convenience. 5. The plaintiff instituted the suit and sought relief of mandatory injunction, directing the defendant to vacate the plaint schedule room on contending that the defendant is a ``` RSA NO. 12 OF 2024 3 ``` licensee in the building, on the strength of licence deed executed in between the plaintiff and the defendant on 28.11.2015. According to the plaintiff, as per lawyer notice, dated 22.8.2016, the licence arrangement was revoked. Since demand for vacant possession, as per the notice, was denied by the defendant, the present suit was necessitated. 6. Defendant contested the matter and filed written statement. _Inter alia_ it is contended that defendant is not a licensee in the plaint schedule room and he has been continuing as a lessee and he got possession of the plaint schedule room in the year 1988 from the father of the plaintiff and he had paid Rs.5,000/- as advance. Initially, rent receipts were issued and thereafter, there was no issuance of rent receipt. Execution of the licence deed was denied. 7. The trial court raised necessary issues and recorded evidence confined to that of PW1 and PW2 and Exts.A1 to A4 on the side of the plaintiff, DW1 and Ext.B1 and B2 series on the side of the defendant. Thereafter, the trial court found that the defendant is a licensee in the plaint schedule room and on revocation of licence, he is liable to vacate the room. ``` RSA NO. 12 OF 2024 4 ``` Accordingly, the suit decreed, directing the defendant to vacate the plaint schedule room within 3 months and also to pay Rs.61,200/- (Rupees Sixty one thousand and two hundred only), towards arrears of licence fee. 8. Though the verdict of the trial court was taken in appeal, the appellate court also confirmed the finding of the trial court. 9. At the time of hearing this matter, the learned counsel for the appellant/defendant zealously argued that the trial court as well as the appellate court went wrong in holding that the defendant has been occupying the building as a licensee. According to him, going by the evidence of PW1 supported by Ext.B2 series rent receipts issued earlier during the period between 1991 to 1994, the arrangement is nothing but a lease. Therefore, the defendant should be held as a tenant and the eviction proceedings to be held as governed by the Kerala Buildings (Lease and Rent Control) Act, 1965. Therefore, the decree and judgment would require interference, by admitting this appeal, is the submission of the learned counsel for the defendant. ``` RSA NO. 12 OF 2024 5 ``` 10. On perusal of the judgment of the trial court, the trial court appraised the contention as regards the nature of arrangement and held the same as a licence. It is argued by the learned counsel for the plaintiff that the husband of the plaintiff is a retired IPS Officer and Ext.A1 is a concocted document. PW1 examined in this case, is the husband of the plaintiff and he supported the execution of Ext.A1 licence agreement. During cross examination of DW1, who is none other than the defendant, when a question was asked suggesting that, whether plaintiff would concoct document, PW1 answered that, plaintiff would not concoct document for the purpose of defrauding him. DW1 also given evidence that he did not read the contents of Ext.A1 before signing it. Thus, it appears that DW1 admitted Ext.A1 containing the averments therein, though his case is that he did not read the same. Apart from PW1, PW2 also was examined to prove the execution of Ext.A1 licence arrangement. On perusal of Ext.A1 licence, it is emphatically clear that the terms of the deed creates mere occupation of the premise by the defendant as a licensee without transfer of any interest and without having absolute possession from the date of licence. ``` RSA NO. 12 OF 2024 6 ``` 11. Different distinction between licence and lease has been considered extensively by this Court in the decision in **C.D.Varghese** v. **Joseph Mani and Another** reported in **[2023** **(6) KLT 460 : 2023 (7) KHC 123]** and it was held as under: _“20. In view of the above discussions, the cardinal features, which would distinguish `lease’ from `licence’ are as under: `Lease’ is a transfer of a right coupled with exclusive possession with transfer of interest to enjoy an immovable property for certain period expressly, impliedly or in perpetuity. On the other hand, `licence’ is a right to do, or continue to do, in or upon the immovable property of the grantor, given in occupation of the licencee, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property. To put it otherwise, the lessee of a building/premises, who got exclusive possession coupled with transfer of interest therein, has the right to possess and enjoy the building/premises; whereas a licensee of a building, who got only a mere right of occupation of the premises/building without transfer of any interest therein, does not have such a right of absolute possession and enjoyment of the building/premises and his right is to do or continue to do the specific business or trade only in the building/premises for which permission has been granted by the licensor as the occupant of the building/premises.”_ ``` RSA NO. 12 OF 2024 7 ``` 12. Thus, it has to be held that the trial court as well as the appellate court rightly found that the arrangement between the plaintiff and the defendant is nothing, but a licence and therefore, the licensee, who had legal obligation to vacate the premises on remuneration of licence, is bound to do so. Since he failed to comply with the legal obligation, decree, directing him to vacate the plaint schedule room, was granted rightly by the trial court. The appellate court also concurred the finding on appreciation of evidence. 13. Therefore, there is no substantial question of law arises in this appeal to admit and maintain this appeal, since it is mandatory to formulate substantial question of law for admitting a second appeal as per the mandate of Order XLII Rule 1 r/w Section 100 of the C.P.C. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in_ ``` RSA NO. 12 OF 2024 8 ``` _the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 14. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves ``` RSA NO. 12 OF 2024 9 ``` such question. 15. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 16. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law._ ``` RSA NO. 12 OF 2024 10 ``` _The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 17. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 ``` RSA NO. 12 OF 2024 11 ``` read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 18. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 19. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. 20. In the event of dismissal of this appeal, the learned counsel for the appellant/defendant sought for a breathing time to vacate the building. 21. Having considered the plea for a breathing time, I am inclined to grant three months' time to the appellant/defendant to vacate the plaint schedule building from today, with direction to deposit the entire arrears of licence fee, granted by the trail court and confirmed by the appellate court, within a period of two weeks from today. It is specifically ordered that, if the arrears, as directed, is not deposited, three months time granted hereby shall not be available for the appellant/defendant to vacate the building and decree is liable to be executed forthwith. ``` RSA NO. 12 OF 2024 12 ``` 22. It is also made clear that, if the defendant pays the arrears and continue occupation for a period of three months, in view of the time granted hereby, the arrears for the said period also should be paid on completion of every month, without fail and in such contingency also, the grace period will be available till the date of default alone, if there will be default in paying the amount. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb