Muthuraman S v. James Varghese and Rachel Varghese Manilal

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944 ``` ``` OP (RC) NO. 161 OF 2022 ``` ``` AGAINST THE ORDER DATED 29.06.2022 IN I.A.NO.2 OF 2020 IN R.C.P.NO.69 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF), THIRUVANANTHAPURAM ``` ``` PETITIONER: ``` ``` MUTHURAMAN.S, AGED 52 YEARS ``` ``` RESIDING AT UTHRADAM, KOKKOTHAMANGALAM, MUNDELA.P.O., THIRUVANANTHAPURAM, PIN - 695541 ``` ``` BY ADVS. BONNY BENNY M.RAMESH CHANDER (SR.) BALU TOM BEJOY JOSEPH P.J. GOVIND G. NAIR ``` ## **`RESPONDENTS:`** ``` 1JAMES VARGHESE RESIDING AT APT 6A, SUMMER BREEZE, PPD, KURAVANKONAM, KOWDIAR.P.O., THIRUVANANTHAPURAM, PIN - 695003 2RACHEL VARGHESE MANILAL W/O.JAMES VARGHESE, RESIDING AT APT 6A, SUMMER BREEZE, PPD, KURAVANKONAM, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN – 695003 ADV.SUMAN CHAKRAVARTHY ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(RC)No.161 of 2022 ``` 2 ## **JUDGMENT** ## **Anil K. Narendran, J** . The petitioner is the respondent-tenant in R.C.P.No.69 of 2017 on the file of the Rent Control Court (Munsiff), Thiruvananthapuram, a petition filed by the respondents hereinlandlords under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building, on the ground of arrears of rent and bona fide need. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P8 order dated 29.06.2022 of the Rent Control Court in I.A.No.2 of 2020 in R.C.P.No.69 of 2017. That application was one filed by the tenant, invoking the provisions under Section 151 of the Code of Civil Procedure, 1908, to decide the question of maintainability of the Rent Control Petition. After considering the rival contentions, the Rent Control Court dismissed that application by Ext.P8 order, holding that, though the nomenclature of the agreement is licence and its contents and recitals would show that it is a rental agreement. In terms of that document, exclusive ``` O.P.(RC)No.161 of 2022 ``` 3 possession of the petition schedule building was handed over to the tenant and an interest in that property is created through that agreement. Therefore, the Rent Control Court found that R.C.P.No.69 of 2017 is perfectly maintainable. 2. On 22.08.2022, when this original petition came up for admission, this Court issued notice on admission to the respondents-landlords. The learned counsel for the petitionertenant was permitted to take out notice to the respondents through their counsel before the Rent Control Court (Munsiff), Thiruvananthapuram, where R.C.P.No.69 of 2017 is pending consideration. 3. Heard the learned Senior Counsel for the petitionertenant and also the learned counsel for the respondents-landlords. 4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P8 order of the Rent Control Court in I.A.No.2 of 2020 in R.C.P.No.69 of 2017, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. The learned Senior Counsel for the petitioner would ``` O.P.(RC)No.161 of 2022 ``` 4 contend that while dismissing I.A.No.2 of 2020 in R.C.P.No.69 of 2017, the Rent Control Court has not properly appreciated the contentions raised by the tenant that Ext.P3 agreement is only a licence agreement and thus, no landlord-tenant relationship exists between the parties. Therefore, the finding of the Rent Control Court in Ext.P8 order is _per se_ arbitrary and illegal, which warrants interference. 6. Per contra, the learned counsel for the respondentslandlords would contend that, as rightly found by the Rent Control Court, Ext.P3 agreement is a lease agreement intended to create exclusive possession of the petition schedule building in favour of the tenant and as such, R.C.P.No.69 of 2017 is maintainable. In Ext.P8 order, the Rent Control Court has relied on the decision of the Apex Court on the point. Therefore, no interference is warranted on Ext.P8 order, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 7. It is relying on clause 14 of Ext.P3 agreement, the learned Senior Counsel for the petitioner-tenant would contend that on the strength of that agreement, the tenant would not get ``` O.P.(RC)No.161 of 2022 ``` 5 exclusive possession of the petition schedule building and as such the reasoning of the Rent Control Court in Ext.P8 order cannot be sustained. Clause 14 of Ext.P3 agreement reads; “14. That the main gate and entrance to the building shall be closed and locked each day at 9 (nine) p.m. and reopened each day at 8 (eight) a.m. and the key kept in custody with the Licensors or any person appointed by him on this behalf.” 8. On the other hand, the learned counsel for the respondents-landlords would submit that, a reading of Ext.P3 agreement would make it explicitly clear that the said document permits exclusive use and occupation of the space/unit of the petition schedule building to the tenant. The said condition is stipulated in clause No.5 of Ext.P3 agreement and clause No.7 deals with the default, if any, in payment of the monthly rent. Clauses 5 and 7 of Ext.P3 agreement read thus; “5. That the license to use and occupy the said space/unit is given only for a period of 11 months starting from (as per attached schedule). XXXX XXXX XXXX 7. The Licensee undertakes that he shall pay 24% (twentyfour percent) interest for the amount due from him in case he commits default in paying the monthly rent or any other ``` O.P.(RC)No.161 of 2022 ``` 6 claim within the stipulated time. The license agreement automatically stands cancelled in case the rent falls in arrears continuously for three months and in such a situation, the Licensee shall vacate the scheduled space/unit forthwith.” 9. Clause 3 of Ext.P3 agreement provides that the Licensee shall pay the share of monthly common maintenance charges for the licensed building apart from the monthly license fees which will be (as per attached schedule) paid per month. Clause 4 provides further that the space/unit shall be used strictly for the business purposes mentioned in this agreement and for no other purpose. ## 10. In **Capt. B.V. D’souza v. Antonio Fausto Fernandes** **[(1989) 3 SCC 574]** , the Apex Court held that for ascertaining whether a document creates a licence or lease, the substance of the document must be preferred to the form. The real test is the intention of the parties - whether they intended to create a lease or licence. If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property “of which the legal possession continues with the owner”, it is a licence. If the party in whose favour the ``` O.P.(RC)No.161 of 2022 ``` 7 document is executed gets exclusive possession of the property, prima facie he must be considered to be a tenant; although this factor by itself will not be decisive. The observations of Lord Denning, M.R. in **Shall-Mex and B.P. Ltd. V. Manchester Garages Ltd., [(1971) 1 All ER 841]** cannot be understood to suggest that the test of exclusive possession has been now rendered irrelevant and redundant. The Apex Court held further that the main purpose of enacting the Rent statues is to protect the tenant from the exploitation of the landlord, who being in the dominating position is capable of dictating his terms at the inception of the tenancy and, the Rent Acts must receive that interpretation which may advance the object and supress the mischief. By adopting a different approach the Rent laws are likely to be defeated altogether. It is therefore not possible to accept the argument that if the parties themselves have chosen to describe the transaction as a licence court cannot make out a different case for them. 11. In **Delta International Ltd. v. Shyam Sundar Ganeriwalla and another [(1999) (4) SCC 545]** , the Apex ``` O.P.(RC)No.161 of 2022 ``` 8 Court held that, to find out whether the document creates a lease or a licence the real test is to find out “the intention of the parties”; keeping in mind that in cases where exclusive possession is given, the line between a lease and a licence is very thin. The Apex Court held further that the intention of the parties is to be gathered from the document itself. Mainly the intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that the document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. 12. In the instant case, as noticed by the Rent Control Court in Ext.P8 order dated 29.06.2022, exclusive possession of the petition schedule building was handed over to the tenant and an interest in the said building is created through that document. Clause 14 of Ext.P3 agreement, relied by the learned Senior Counsel for the petitioner, deals with entry to the petition schedule building through the main gate and entrance of the commercial ``` O.P.(RC)No.161 of 2022 ``` 9 complex, which is having multiple tenanted premises. Therefore, the findings of the Rent Control Court in Ext.P8 order cannot be said to be arbitrary or illegal, warranting an interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, the original petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** ``` O.P.(RC)No.161 of 2022 ``` 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:`** ``` Exhibit P1 PHOTOCOPY OF THE PETITION FILED BY THE RESPONDENTS BEFORE THE RENT CONTROL COURT, THIRUVANANTHAPURAM NUMBERED RCP 69/2017 Exhibit P2 PHOTOCOPY OF THE OBJECTION TO THE PETITION FILED BY THE PETITIONER BEFORE THE RENT CONTROL COURT, THIRUVANATHAPURAM IN RCP NO. 69/2017 DATED 23.03.2019 Exhibit P3 PHOTOCOPY OF THE LICENSE AGREEMENT ENTERED BETWEEN THE PARTIES DATED 05.06.2015 Exhibit P4 PHOTOCOPY OF THE PETITION ALONG WITH THE AFFIDAVIT FILED BY THE PETITIONER BEFORE LEARNED TRIAL COURT NUMBERED IA 2/2020 IN RCP NO. 69/2017 Exhibit P5 PHOTOCOPY OF THE OBJECTIONS FILED BY THE RESPONDENTS IN IA NO. 2/2020 IN RCP NO. 69/2017 Exhibit P6 PHOTOCOPY OF THE SAID APPLICATION NUMBERED IA 5/2021 IN RCP NO. 69/2017 FILED BEFORE THE RENT CONTROL COURT Exhibit P7 PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER IN IA 5/2021 IN RCP NO. 69/2017 Exhibit P8 CERTIFIED COPY OF THE ORDER OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM IN IA 2/2020 IN RCP NO. 69/2017 DATED 29.06.2022 Exhibit P9 PHOTOCOPY OF THE ORDER OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM IN IA 5/2021 IN RCP NO. 69/2017 DATED 29.06.2022 RESPONDENT'S EXHIBITS:NIL ```