M. Saidali v. The District Library Council, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 30TH DAY OF JULY 2014/8TH SRAVANA, 1936** ## **RSA.No. 512 of 2013** **-----------------------------** **A.S.NO. 159/2010 OF ADDITIONAL DISTRICT COURT - III, KOZHIKODE** **O.S.NO. 732/2000 OF ADDITIONAL MUNSIFF COURT - II, KOZHIKODE** **---------------** ## **APPELLANT / APPELLANT / 4TH DEFENDANT :** **--------------------------------------------------------------------** **M.SAIDALI, AGED 57 YEARS, S/O. MUHAMMAD, BHARATH HANDLOOMS, INDIRAGANDHI ROAD, KASABA, KOZHIKODE** **BY ADV. SRI.E.NARAYANAN** ## **RESPONDENT / 1ST RESPONDENT / PLAINTIFF :** **-----------------------------------------------------------------------** **THE DISTRICT LIBRARY COUNCIL, KOZHIKODE, REPRESENTED BY SECRETARY, ROOM NO. 3, PALAYAM BUS STAND BUILDING, P.O.CHALAPPURAM, KASABA, KOZHIKODE.** ## **BY ADV. SRI.P.V.SURENDRANATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **P.BHAVADASAN, J.** **-----------------------------------------------Regular Second Appeal No.512 OF 2013 -----------------------------------------------Dated this the 30[th] day of July, 2014.** ## **J U D G M E N T** The 4[th] defendant in O.S.No.732/2000 before the Additional Munsiff Court-II, Kozhikode is the appellant. The predecessor in interest of the plaintiff in the suit let out four pieces of land to four different persons for erecting bunk shops as evidenced by Exts.A1 to A3. Even after the period of licence, they continued their possession and the plaintiff continued to receive licence fee. A suit was laid for surrender and possession of premises after the termination of the period of licence and after issuing notice to them. 2. The defendants resisted the suit. We are mainly concerned with the contentions raised by the 4[th] defendant who is the appellant before this Court. The main objection raised by the 4[th] defendant was regarding the competency of the plaintiff to lay the suit and the right of the person who is representing the **R.S.A No.512/2013** **2** plaintiff to do so. It is pointed out that the arrangement under which the land was taken was a lease arrangement and therefore, unless the lease is properly terminated, suit cannot lie. It is also contended that the alleged purpose for which the surrender of land is sought for is not bonafide and it is only with the purpose of evicting the defendants from the property. On the basis of the above pleadings, he prayed for dismissal of the suit. 3. The trial court, based on the allegations and the contentions in the plaint as well as the defence set up by various defendants, raised necessary issues for consideration. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A9 from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts.B1 to B29 marked. 4. The trial court, on appreciation of evidence in the case, came to the conclusion that the arrangements under which the defendants were occupying the premises were only licence arrangements and the licence has been properly terminated. **R.S.A No.512/2013** **3** Rejecting the other contentions raised by the defendants, the trial court decreed the suit. Some of the defendants carried the matter in appeal and the 4[th] defendant, who is the appellant before this Court, is one among them. The lower appellate court, after independent evaluation of the evidence, concurred with the trial court as regards the crucial issues and confirmed the decree passed by the trial court. 5. At the time of admission, the following substantial questions of law were formulated by this Court. - a. Whether the courts below erred in properly appreciating the law, facts and evidence in the above case in the light of 2011 (2) KLT SN 75? - b. Whether the lower appellate court erred in not considering the questions of misjoinder of causes of action and parties in the case? - c. Whether the court below erred in properly appreciating the evidence available in the case for deciding the question whether the entrustment is a lease or licence? 6. Learned counsel appearing for the appellant contended that the suit is barred by misjoinder of causes of action and has **R.S.A No.512/2013** **4** to fail on that sole ground. According to the learned counsel, entrustment of the plaint schedule properties was by a separate and distinct contracts and therefore a single suit for eviction of the four persons is not maintainable in law. For the above proposition, learned counsel relied on the decision in _**Vasavan** vs._ _**Balakrishnan**_ (1986 KLT 988). It is also contended on behalf of the appellant that even assuming that a single petition is maintainable, unless the court finds that a common question of law and fact arises for consideration in which case alone single suit for eviction of different licencees will be maintainable. It is contended that the decree passed by the court below cannot be supported. It is further contended that the court fee paid is not proper in the sense that there were four persons against whom suit was laid for eviction and going by Section 6(3) of the Court fees and Suit Valuation Act, court fee had to be paid on the aggregate value and not as if only a single suit for eviction. It was also contended that going by Ext.A8 notice issued by the predecessor in interest of the plaintiff and also Exts.B8 to B29, tax receipts and rent receipts, it becomes clear that the **R.S.A No.512/2013** **5** arrangement is a lease arrangement. It is then contended that the court fee had to be paid separately and that having not been done, the decree is bad in law. 7. Learned counsel appearing for the respondent, on the other hand, contended that the contentions raised by the appellant are without any basis and it can be seen that those contentions do not find a place in the written statement filed by the 4[th] defendant. He had no such case that court fee paid was insufficient. Learned counsel contended that the words used in the rent receipt i.e. rent or in Ext.A8 notice i.e. വ�ടക do not determine whether the arrangement is a lease arrangement or licence arrangement. The documents under which the respective persons were put in occupation of the premises will have to be read as a whole and the relationship that arises out of the document will have to be ascertained. Viewed so, it is clear that only pieces of land were given for occupation to the respective persons with permission to put up bunk shop. It is contended that there is no plea under Section 60(b) of the Indian Easements Act and therefore it is clear from the documents by which they **R.S.A No.512/2013** **6** were occupied the properties that it was purely a licence arrangement and the occupants were bound to vacate the premises on termination of licence. It was also contended that since the issue regarding court fee has not been raised at the earlier opportunity, going by Section 99 of the Code of Civil Procedure, unless it is shown that prejudice has been caused to the defendants, those contentions do not merit consideration at the hands of this Court. 8. Learned counsel for the respondent then relied on the decisions in _**Kunhamu** vs._ _**Arun Kumar**_ (2010 (3) KLT 640) and in _**Jamal** vs._ _**Safia Beevi**_ (2005 (2) KLT 359 (FB)) to contend for the position that a single suit for eviction including the 4[th] defendant would be maintainable in the facts and circumstances of the case. It is therefore contended that no grounds are made out to interfere with the judgment and decree of the courts below. 9. Order 1 Rule 3 of the Code of Civil Procedure reads as follows: - “3. Who may be joined as defendants.- All persons may be joined in one suit as defendants where- **R.S.A No.512/2013** **7** - (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and - (b) if separate suits were brought against such persons, any common question of law or fact would arise”. 10. A reading of the above provision shows the circumstances under which reliefs against several persons can be granted in a single suit. It cannot be disputed in the case on hand that the arrangement under which various persons were put in occupation was a licence arrangement and each entrustment was by a separate and distinct contract. However, going by clause (a) of Order 1 Rule 3 of the Code of Civil Procedure, it is permissible to lay a single suit for eviction. It is true that in such a suit, clause (b) of Order 1 Rule 3 of the Code of Civil Procedure has also to be satisfied in the sense that the test to be applied is that if separate suits were brought against such persons, a common question of law and fact would arise for consideration. In the decision in _**Kunhamu** vs._ _**Arun Kumar**_ (2010 (3) KLT **R.S.A No.512/2013** **8** 640) and in _**Jamal** vs._ _**Safia Beevi**_ (2005 (2) KLT 359 (FB)), it was held that a single petition for eviction against several tenants occupying different portions of one and the same building will be maintainable provided a common question of law and fact arises for consideration. 11. In the case on hand, the main issue that is agitated is whether the document under which the persons were put in occupation was lease or licence. According to the defendant, it is a lease arrangement. On the other hand, the plea taken by the plaintiff is that it is only a licence arrangement. It is significant to notice that on going through the documents under which these persons were entitled for occupation, it is seen that only portions of land were allowed to be occupied by the persons concerned. No doubt they are allowed to put up bunk shops also. Therefore, the common question that arises for consideration was whether the arrangement under which persons were put in occupation was lease or licence arrangement. Even assuming that there were additional issues arising for consideration in respect of other tenants, that is not a ground to hold that the suit is barred by **R.S.A No.512/2013** **9** misjoinder of causes of action. However, as rightly pointed out by the learned counsel for the respondent, under Order II Rule 7 of the Code of Civil Procedure, such objection shall be taken at the earliest opportunity and the learned counsel for the respondent pointed out that such a contention was not taken by the 4[th] defendant at all. On going through the written statement of the 4[th] defendant, it appears to be so. On that ground also, the plea has to fail. 12. As regards the contention that the arrangement under which the persons occupied the premises is a lease arrangement, it is without any basis whatsoever. On going through the documents namely, Exts.A1 to A3, it is seen that the nomenclature is licence. Of course, in Ext.A8 notice issued by the predecessor in interest of the plaintiff, it is stated that “ ” വ�ടക . It is also true that in Exts.B17 to B27 which are receipts issued for having received the rent, the word used is 'rent'. It is ” now by well settled that the mere use of the word “ വ�ടക is not a ground to hold that the arrangement is a lease arrangement. In the case on hand, as already noticed, bits of land were given for **R.S.A No.512/2013** **10** occupation with permission to put up bunk shop. The respective documents stipulate that as and when required, they will vacate the premises. 13. Having come into occupation on the basis of Exts.A1 to A3, it comes little late from the defendants to say that they are in occupation on the basis of the lease arrangement and not on the basis of licence arrangement. The evidence is clear to the effect that the bunk shops were put up by the respective persons. There seems to be no plea under Section 60(b) of the Indian Easements Act. 14. It was very vehemently contended that court fee paid is not sufficient. It cannot be disputed that the court fee has to be paid under Section 6(3) of the Kerala Court fees and Suit Valuation Act. The question arises is whether a single court fee is sufficient or not since the reliefs are sought for for four different persons who are distinct and independent of each other. 15. Learned counsel for the respondent brought to the notice of this Court Section 54 of the Kerala Court fees and Suits Valuation Act which reads as follows: **R.S.A No.512/2013** **11** “54. **Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes** .- (1) Notwithstanding anything contained in Section 99 of the Code of Civil Procedure, 1908 (Central Act V of 1908), an objection that by reason of the overvaluation or under-valuation of a suit or appeal, a Court of first instance or lower Appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court, unless- (a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court, or (b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued, or under-valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. (2) If the objection was taken in the manner mentioned in clause (a) of sub-section (1), but the Appellate Court is not satisfied as to both the matters mentioned in clause (b) of that sub-section and has before it the materials necessary for the determination of the other grounds of appeal to **R.S.A No.512/2013** **12** itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court. (3) If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of the appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal. (4) The provisions of this section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 (Central Act V of 1908), or other enactment for the time being in force”. 16. A mere reading of the said provision will indicate that the provision has no application to the facts of the case. On the other hand, Section 6(3) of the Court fees and Suits Valuation Act governs the matter. The said provision reads as follows. “6. Multifarious suits.- ....... (3) Where a suit embraces two or more distinct and different causes of action and separate **R.S.A No.512/2013** **13** reliefs are sought based on them, either alternatively or cumulatively, the plaint shall be chargeable with the aggregate amount of the fees with which plaints would be chargeable under this Act if separate suits were instituted in respect of the several causes of action: Provided that, where the causes of action in respect of reliefs claimed alternatively against the same person arise out of the same transaction, the plaint shall be chargeable only with the highest of the fees chargeable on them. Nothing in the sub-section shall be deemed to affect any power conferred upon a Court under Rule 6 of Order II of the Code of Civil Procedure, 1908 (Central Act V of 1908)”. 17. Both the courts below have not considered the above aspects in the proper perspective and it cannot be disputed that the court fee has to be paid under Section 6(3) of the Kerala Court Fees and Suits Valuation Act. Learned counsel for the respondent placed reliance on Section 99 of the Code of Civil Procedure which shows that the contention based on misjoinder or nonjoinder has to be considered at the first opportunity and the decree passed shall not be reversed on that basis unless prejudice has been caused to the persons concerned. There is no **R.S.A No.512/2013** **14** plea for the defendants in this case that by the misjoinder of the parties, any jurisdictional fact is involved. 18. At the risk of repetition, one may notice that the common issue in this case is whether the arrangement was lease or licence. It is significant to notice that even after the licence period was over, the persons continued to be in occupation of the premises and the grantor continued to receive rent from them. As to what is the real status of such licencee is a matter of debate. At any rate, they cannot be termed as lessees. By the issuance of notice by the predecessor in interest of the plaintiff, the licence arrangement stands determined and the defendants are liable to surrender the premises. 19. As regards the question of court fee, Section 6(3) of the Kerala Court Fees and Suits Valuation Act is applicable to the facts of the case. Section 12 of the Act enables the appellate court to determine the court fee which is liable to be paid by the plaintiff. It is made clear that the court fee paid is inadequate and it will have to be paid in terms of Section 6(3) of the Act. The court fee has been paid under Section 30 of the Act. Here **R.S.A No.512/2013** **15** again, the proviso to Section 6(1) of the Act comes into play. 20. Learned counsel appearing for the appellant relied on the decision in _**Appukuttan** vs._ _**Kamalakshi**_ (1996 (2) KLT 977) and pointed out that separate court fee will have to be paid for recovery of possession and relief of mandatory injunction. On going through the decision, it can be seen that it has no application to the facts of the case. In the decision also, it was observed that if one of the reliefs is different from the main relief , then the former relief has to be answered before the main relief in which case, court fee has to be paid only for the main relief. In the case on hand, the main prayer is for vacating the premises and for handing over of the possession. The prayer for mandatory injunction can be taken only as incidental to the main relief. 21. For the above reasons, this Court finds no reason to interfere with the judgment and decree of the courts below. Subject to the condition that the plaintiff pays court fee under Section 6(3) of the Kerala Court Fees and Suits Valuation Act, the appeal stands dismissed confirming the findings of the court **R.S.A No.512/2013** **16** below. 22. Learned counsel appearing for the appellant prays for a reasonable time to vacate the premises. Learned counsel appearing for the respondent then pointed out that certain similarly placed persons had approached this Court and this Court had granted three months time to vacate the premises. Considering the totality of the facts and circumstances of the case, it is felt that in the case on hand, six months time will be reasonable for the licencees to vacate the premises. While confirming the judgment and decree of the courts below as against the appellant, subject to the condition that proper court fee is paid, the appellant is granted six months time from today to vacate the premises provided he files an unconditional affidavit before the trial court within a period of two weeks from today undertaking to vacate the premises on or before the expiry of six months from today and also with a condition to pay licence fee as has been stipulated in the agreement till he vacate the premises. ## **P.BHAVADASAN JUDGE** smp