Kadavath Parambil Manohar v. Dr. Panniankandy Balan (deceased) and P. Girija

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938** **RSA.NO. 1079 OF 2016 (C)** **------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 04-08-2016 IN A.S. NO. 33/2014 OF THE III ADDITIONAL DISTRICT COURT, KOZHIKODE** **AGAINST THE JUDGMENT AND DECREE DATED 17.12.2013 IN O.S. NO. 418/2012 OF THE I ADDITIONAL MUNSIFF COURT, KOZHIKODE** ## **APPELLANT/APPELLANT/DEFENDANT:** **--------------------------------** **KADAVATH PARAMBIL MANOHAR, AGED 51 YEARS, S/O SREEDHARAN, RESIDING AT NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT AND DOING BUSINESS AT 1/989, KUNIPARAMBA, KANNUR ROAD, WEST HILL, KACHERI AMSOM DESOM, KOZHIKODE TALUK.** **BY ADVS.SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP** ## **RESPONDENTS/RESPONDENT/LEGAL HEIRS OF PLAINTIFF:** **--------------------------------------------------** **1. DR.PANNIANKANDY BALAN (DIED), AGED 83 YEARS, S/O KELU, PANNIANKANDY HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE, PIN 673** **2. P.K. GIRIJA, AGED 50 YEARS, D/O LATE DR. PANNIANKANDY BALAN, PANNIANKANDY HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE PIN 673** **R2 BY ADVS. SRI.PHILIP ANTONY CHACKO** **SRI.P.M.SEBASTIAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** **==> picture [158 x 16] intentionally omitted <==** **= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 1079 of 2016** **- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 15th day of November, 2016 ## **J U D G M E N T** The appellant is the defendant in O.S. No.418 of 2012 on the files of the Additional Munsiff Court-I, Kozhikode as well as the appellant in A.S. No.33 of 2014 on the files of the III Additional District Court, Kozhikode. The aforesaid Original Suit was filed by the deceased 1[st] respondent herein against the appellant for mandatory injunction, directing the appellant to vacate the premises, which is in occupation of the appellant under Ext.A1 licence agreement and also for recovery of damages. 2. It is the case of the plaintiff that the plaint schedule shop room belongs to him and he had let out the said room to the defendant as per Ext.A1 agreement executed between the plaintiff and **R.S.A. No. 1079 of 2016** ## **-: 2 :-** the defendant. The said agreement was executed for 11 months only and after the said period, he had issued Ext.A12 notice revoking the said licence and demanding vacant possession of the shop room. But, the defendant has not vacated the shop room so far. Hence, the suit was filed for the aforesaid reliefs. 3. The defendant contended that the transaction was a lease arrangement. Though, Ext.A1 agreement was executed between the plaintiff and the defendant as a licence, it is specifically contended that the licence agreement or the licence deed set up in the plaint is neither a valid nor a genuine document voluntarily or willfully signed by the defendant. The plaintiff had periodically procured his signatures on blank stamp sheets and blank papers purportedly for preparing the lease deeds and **R.S.A. No. 1079 of 2016** ## **-: 3 :-** the said blank papers had been misused to create and concoct the licence agreement pleaded in the plaint. 4. On the aforesaid rival pleadings, both parties adduced evidence consisting of oral testimony of PW1 and DW1 and Exts.A1 to A4(a) and B1 to B1(a). After considering the evidence on record, the trial court decreed the suit on the finding that the transaction between the plaintiff and defendant is a licence arrangement and the defendant failed to prove that Ext.A1 agreement was a concocted document fabricated in blank signed stamp paper. Even though, the defendant preferred an appeal, the appellate court also, after re-appreciating the evidence on record, concurred with the findings of the trial court and affirmed the findings that the ## **R.S.A. No. 1079 of 2016** ## **-: 4 :-** transaction under Exts.A1, A5 and A6 is a licence arrangement only and not a lease. Thus, the concurrent findings of the court below that the transaction under Exts.A1, A5 and A6 is a licence and not a lease are assailed in this Regular Second Appeal. This Court framed the following questions of law for consideration in this appeal: - _1.“Whether the relationship between the_ - _plaintiff and defendant are landlord and tenant relationship, in the light of Exts.B1 series of receipts and evidence of DW1?_ - _2.Whether Ext.A1 is licence agreement or rent deed?_ 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. The sum and substance of the arguments **R.S.A. No. 1079 of 2016** ## **-: 5 :-** advanced by the learned counsel for the appellant is that the transaction between the plaintiff and defendant is a lease arrangement though it is described as licence in Ext.A1 agreement and nonexamination of the plaintiff is fatal. 7. _Per contra_ , the learned counsel for the defendant/respondent contended that it is well discernible from Exts.A1, A5 and A6 that the transaction is a licence arrangement only and not a lease arrangement as contended by the plaintiff. Where the document is unambiguous, there is no need to examine the parties to the documents themselves. So non-examination of the plaintiff is not fatal to the plaintiffs' case and PW1 is competent to swear for and on behalf of the plaintiff as regards, the transaction between the plaintiff and the defendant. **R.S.A. No. 1079 of 2016** ## **-: 6 :-** 8. Thus, the question in controversy centres around whether the transaction between the plaintiff and defendant is a licence or a lease? Ext.A1 is the licence agreement under which the shop room was let out to the defendant. On a reading of Ext.A1, it could be seen that the nomenclature itself is licence and the parties are referred to as licensor and licensee and licence period is 11 months only . It is specifically stated that it is a simple licence only and not coupled with any interest over the shop room. So also, it is stated that the licensor has received `90,000/- as security returnable at the end of 11 months. 9. On the other hand, it is the case of the defendant that even though Ext.A1 agreement described as licence, the said agreement was made **R.S.A. No. 1079 of 2016** ## **-: 7 :-** fabricating the contents of the document in a signed blank stamp paper obtained by the plaintiff from the defendant. It is pertinent to note that signature in Ext.A1 agreement is not challenged in the written statement filed by the defendant. 10. Coming to the evidence, it could be seen that the defendant has left away the said contention and no evidence had been adduced to show that the plaintiff has obtained signed blank papers from the defendant and Ext.A1 agreement was executed in one such blank signed stamp paper. But in Appeal, the case of the defendant is that even though Ext.A1 was a licence agreement, the real intention of the party was to create a lease agreement and a lease agreement was created thereunder. Exts.A5 and A6 are prior licence deeds executed in the year 2007 and **R.S.A. No. 1079 of 2016** ## **-: 8 :-** 2010. On a reading of those documents also, they give rise to an unambiguous inference that the intention of the parties was to create a licence agreement and not a lease agreement as contended by the defendant. 11. The learned counsel for the defendant cited the decision in _**Capt. B.V. D'Souza v. Antonio Fausto Fernandes**_ [1989 KHC 951] and contended that non-examination of the plaintiff is fatal to the plaintiff's case as intention of the party is not discernible from Ext.A1. This Court is unable to countenance the said argument as the terms of Ext.A1 licence agreement are unambiguous and expressive of the intention of the parties and that they leave no room for doubt. If that be so, the non-examination of the plaintiff is not fatal. The above view is ## **R.S.A. No. 1079 of 2016** ## **-: 9 :-** supported by the decision of the Hon'ble Supreme Court in _**Saran Singh v. Madan Singh**_ [1995 Supp (1) SCC 306]. In the aforesaid decision, the Apex Court held that where the document is unambiguous, there is no need to travel beyond the document and look at the attendant circumstances together with the intention of the parties. 12. It is pertinent to note that in Ext.A3 reply notice sent by the defendant to the plaintiff, the defendant has no case that Ext.A1, A5 and A6 are agreements concocted by the plaintiff in a signed blank stamp paper. Therefore, there is no circumstance to doubt the execution of Ext.A1 agreement or the intention of the parties discernible from the clear terms of Ext.A1 agreement. Further, in this Appeal it is the case of **R.S.A. No. 1079 of 2016** ## **-: 10 :-** the defendant that Ext.A1 agreement was executed under the undue influence of PW1 and unless the plaintiff was examined it cannot be held that the intention of the parties was to create a licence agreement. 13. Going by the written statement and Ext.A3 reply notice, it could be seen that the defendant has not raised such a contention that the licence agreement was one fabricated under undue influence or coercion exerted by PW1. In other words, there is no pleadings as to the alleged involvement of PW1 either in the written statement or in Ext.A3 reply notice. It is trite law that evidence without pleadings cannot be looked into. So also, when PW1 was cross-examined, he also admitted that he is the grand son of the plaintiff and he has been managing **R.S.A. No. 1079 of 2016** ## **-: 11 :-** the affairs of the plaintiff and he is also aware of the transaction between the plaintiff and the defendant. More importantly, PW1 is also a witness in Exts.A5 and A6, prior agreements. Therefore, it could be presumed that he was well aware of the nature of the transaction between the plaintiff and the defendant and he is competent to swear for and on behalf of the plaintiff. 14. The learned counsel for the defendant further contended that Ext.B1 series of receipts show that amount received by the plaintiff from the defendant is rent and not licence fee. But it has come out in evidence that Ext.B1 series of receipts are issued from a printed receipt book. In the above context, the court below rightly relied on a decision of this Court in _**Francis v. Sarada**_ [2004 **R.S.A. No. 1079 of 2016** ## **-: 12 :-** (1) KLT 962], wherein this Court held that merely because of the word 'vadaka' is used in the letter, it cannot be concluded that the arrangement is one of the tenancy. The general rule is that the document has to be interpreted on the basis of the words used in the document even to find out the intention of the parties. When applying the above proposition, to the instant case, it could be seen that in Ext.A1 it is clearly stated that the defendant shall pay a licence fee at the end of every month. Therefore, it could be presumed that Ext.B1 series of tax receipts were issued from the printed receipt book, without noticing the difference between licence fee and rent. In this context, it is to be remembered that the plaintiff has rented out 5 other shop rooms to other tenants ## **R.S.A. No. 1079 of 2016** ## **-: 13 :-** under lease arrangement and the tax receipts are being issued from the same book to both the defendant and other tenants. 15. Thus, on an analysis of the entire evidence on record, this Court also concurrs with the findings of the court below that the transaction between the plaintiff and defendant under Ext.A1 is a lease arrangement only and not a licence. If that be so, the court below is justified in granting the reliefs as prayed for. The impugned judgment under challenge do not call for any interference. Consequently, this Regular Second Appeal will stand dismissed. 16. The learned counsel for the appellant submits that the defendant is ready and willing to surrender shop room within one year and he wants one **R.S.A. No. 1079 of 2016** ## **-: 14 :-** year time to find out another shop room to shift his business and if he is evicted abruptly, he will be deprived of his livelihood. The learned counsel for the respondent submits that in view of the submissions made by the learned counsel for the appellant, a reasonable time can be given and it cannot be more than six months. 17. Having regard to the entire facts and circumstances of the case and the submissions made at the Bar, this Court deems it just and proper to allow the appellant to vacate the premises, within one year, provided that the appellant shall file an affidavit, before the trial court, expressing his willingness to surrender the shop room, within two weeks from the date of receipt of a copy of this judgment and he shall not make default in payment of **R.S.A. No. 1079 of 2016** ## **-: 15 :-** rent also and he shall deposit the entire arrear within the aforesaid two weeks and shall not commit default in payment of monthly licence fee. Needless to say, in the case of default, this facility will stand automatically cancelled and the respondent is at liberty to proceed with execution. This Regular Second Appeal is dismissed accordingly. Sd/- **K. HARILAL,** **JUDGE** DST //True copy// P.A. To Judge