P. J. JOSEPH v. SUNIL GEORGE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 RSA NO. 5 OF 2024** **AS 98/2022 OF IInd ADDITIONAL DISTRICT COURT, KOZHIKODE OS 334/2019 OF MUNSIFF-MAGISTRATE COURT, THAMARASSERY** ## **APPELLANT/APPELLANT/DEFENDANT:** P.J JOSEPH AGED 59 YEARS S/O JOSEPH, PAIMBALLIYIL HOUSE THIRUVAMBADI P.O, THIRUVAMBADI AMSOM DESOM THAMARASSERY TALUK, PIN - 673603 BY ADVS. P.A.MOHAMMED SHAH RENOY VINCENT SHAHIR SHOWKATH ALI CHELSON CHEMBARATHY ABEE SHEJIRIK FASLA N.K MUHAMED JUNAID V. FATHIMA AFEEDA P. ADITH KRISHNAN.U. NABEEL SHAH IBRAHIM SHIBU V.M. ## **RESPONDENT/RESPONDENT/PLAINTIFF:** SUNIL GEORGE AGED 53 YEARS S/O M.M VARKKI MUTTATHKUNNEL HOUSE, THIRUVAMBADI AMSOM CHERUPRADESOM, MUKKOM P.O THAMARASSERY TALUK, PIN – 673602 (CAVEATOR – GEORGE SEBASTIAN) ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION** **ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No.5 of 2024 -2- **A. BADHARUDEEN, J. ----------------------------------------------------R.S.A.No.5 of 2024 ----------------------------------------------------Dated this the 5[th] day of January, 2024** ## **JUDGMENT** The Second Appeal has been filed under Section 100 read with Order 42 Rule 1 of the Code of Civil Procedure. The appellant is the defendant in O.S.No.334/2019 on the files of the Munsiff Court, Thamarassery. He is aggrieved by the judgment and decree rendered by the learned Munsiff dated 27/07/2022 and confirmed by the Additional District Court, Kozhikode-II in A.S.No.98/2022 dated 19/10/2023. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent - Adv.George Sebastian, who filed Caveat O.P.No.1106/2023. Perused the judgments under challenge. 3. I shall refer the parties in this appeal RSA.No.5 of 2024 -3- with reference to their status before the trial court as plaintiff and defendant. 4. Originally, the suit was instituted by the plaintiff for injunction, possession and damages. The case of the plaintiff is that the defendant, who occupied the plaint schedule building as a licencee, as per the licence deed executed on 01/12/2014, is hesitant to vacate the same. It is alleged further that the period of licence initially was for 11 months and the same expired on 31/10/2015. When the licencee failed to surrender vacant occupation of the licenced premises, the suit was necessitated. 5. The defendant filed written statement and raised contention that the defendant got possession of the building from 2004 itself as a 'lessee' and therefore, his status is not that of a 'licencee' but that of a 'lessee'. 6. The trial court recorded evidence. PW1 and PW2 examined and Exts.A1 to A5 marked on the side of the plaintiff. DW1 to DW3 examined and Exts.B1 and B2 RSA.No.5 of 2024 -4- marked. CW1 examined and Ext.C1 also marked. 7. On adjudication of the matter, the learned Munsiff decreed the suit as under: _**1. Defendant is directed to hand over to the plaintiff the vacant possession of plaint schedule shop room within two months.**_ _**2. Defendant is liable to pay Rs.11,310/- per month as damages to the plaintiff for the unauthorized use and occupation of the plaint schedule shop room from the date of suit onwards.**_ _**3. The plaintiff is also entitled to recover possession of the plaint schedule shop room on the basis of his title also.**_ 8. On appeal, the learned Additional Judge also confirmed the findings. 9. The learned counsel for the defendant submitted that PW1 admitted occupation of the building prior to Ext.A1 and therefore, his status is that of a 'lessee'. Therefore, the verdicts under challenge, would require interference, by admitting this second appeal. 10. Refuting his contention, Adv.George Sebastian who appears for the plaintiff submitted RSA.No.5 of 2024 -5- that whether the arrangement is one of 'lease' or 'licence', the same has no significance in this case at hand, since the provisions of the Kerala Buildings (Lease and Rent Control) Act would not apply to the plaint schedule building in question and therefore the remedy of the plaintiff is to file suit for vacant possession of the plaint schedule room as rightly done herein. He also submitted that on a reading of Ext.A1-the licence agreement executed on 01/12/2014, the arrangement is nothing but a licence and not a lease. Therefore the courts below rightly held that the defendant is a licencee and is liable to vacate his occupation. 11. Different distinction between licence and lease has been considered extensively by this Court in the decision reported in _**C.D.Varghese v. Joseph Mani and Another [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**_ RSA.No.5 of 2024 -6- _**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.”**_ 12. In this matter, even though the defendant raised a contention that he is not a licencee but a lessee, the evidence available as that of PW1 read along with Exts.A1 to A5 would show that the arrangement is nothing but a licence and mere occupation of the building, without getting any transfer of interest with exclusive possession would RSA.No.5 of 2024 -7- not make the arrangement as a lease. If so, it has to be held that the trial court as well as the appellate court have rightly granted the reliefs holding that the defendant as a licencee in occupation of the building and is bound to vacate the building along with damages for unauthorized use and occupation of the plaint schedule room. It appears that there is no substantial question of law arises to be decided in this appeal. The appeal is devoid of any merits and the same deserves dismissal without being admitted. 13. 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 the appeal without the leave of the Court, given in accordance_ RSA.No.5 of 2024 -8- _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 RSA.No.5 of 2024 -9- 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 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** RSA.No.5 of 2024 -10- **(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. 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 RSA.No.5 of 2024 -11- 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 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. RSA.No.5 of 2024 -12- 19. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. 20. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. 21. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. 22. The learned counsel for the defendant – appellant sought for a breathing time to vacate the building. The other side though formally opposed the grant of time, it has been submitted by the learned counsel for the plaintiff that if the defendant is ready to clear the entire arrears under the head 'damages for use and occupation' granted by the trail court forthwith, a reasonable time of three months may be granted. 23. Having considered the rival submissions, I am inclined to grant three months' time to appellant RSA.No.5 of 2024 -13- – defendant to vacate the plaint schedule building from today, with direction to deposit the entire arrears under the head damages for use and occupation 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. 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. Sd/- **JUDGE** ## **A. BADHARUDEEN** rsr