Narinder Nath Saini v. Prem Parkash Kaur .

S.S Sodhi, J.:— Behind the shop of the defendant-Narinder Nath Saini in Ludhiana is a godown which belongs to the plaintiff Prem Parkash Kaur, but has been in his possession. The controversy here is whether this godown is held by the defendant as a tenant or a licencee?

2. According to the plaintiff-Prem Parkash Kaur, she had granted a licence to the defendant Narinder Nath Saini for use of (his godown for a period of two years by the licence deed exhibit P/1 executed on January 1, 1970. In terms of this deed, he was required to hand back possession of the godown on the expiry of the said period of two years and also to reconstruct the wall which he had been allowed to remove by an earlier agreement of September 1, 1968. The licence deed also provided for payment of damages at the rate of Rs. 40/- per day, if possession was not delivered by the due date. The defendant now not having delivered possession, she sought a decree for mandatory injunction directing him to vacate the godown and to reconstruct the wall which he had removed in pursuance of the agreement of September 1, 1963.

3. The defendant, Narinder Nath Saini, on his part, took up the plea that he was in occupation of the said property as a tenant and the jurisdiction of the civil court consequently stood barred under the provisions of the East Punjab Urban Rent Restriction Act, 1949.

4. The trial court held in favour of Narinder Nath Saini on the finding that he was a tenant. This was, however, reversed in appeal by the lower appellate court, where it was held that the defendant was a licencee under the licence deed exhibit P/1 and was in terms thereof, liable to hand-back possession of the godown to the plaintiff Mandatory injujction was accordingly granted to the plaintiff, as prayed for also with regard to the reconstruction of the wall.

5. As is well-known, there is a marked distinction between the lease and a licence. To ascertain whether a document creates a lease or the licence, the test, as laid down by the Supreme Court in Associated Hotels Of India Ltd v. R.N Kapoor . AIR 1959 SC 1262., is “(1). The substance of the document must be preferred to the form; (2) the real test is the intention of the parties-whether they intended to create a lease on licence; (3) If the document creates an interest in the property, it is lease, but if it only permits another to make use of the property on which the legal possession continues, to be with the owner, it is a licence; and (4) If under the document, a party gets exclusive possession of the property prima facie he is considered to be a tenant, but circumstances may be established which negative the intention to create a lease.”

6. Seen in this light, what stands out in the licence deed exhibit P/1 to justify the lower appellate court reading it to be what it purports to be, namely; licence deed is the absence therein of any provision relating to payment of any amount by the defendant to the plaintff in respect of the premises in question. Payment has been prescribed in this deed only on the defendant's failing to deliver back possession after the expiry of the two years' period granted by it. In this behalf, it would be pertinent to note that when the defendant-Narinder Nath Saini came into the witness box, he deposed that he had been paying rent for these premises and he also had with him receipts showing such payment. No such receipts were, however, ever produced on record during the trial or before the lower appellate court. It was only after the conclusion of arguments in this Court that an application under Order 41 Rule 27 of the Code of Civil Procedure was filed where by permission was sought to place on record documents purporting to be receipts issued on behalf of the plaintiff in respect of the said godown. This application was vehemently opposed by the plaintiff and for good reasons. An objection was taken there not only on the grounds that so called receipts were being produced at a very belated stage, but also for the reason that Mohammad Ali, who is alleged to have signed the said receipts had been examined as a witness in the trial court, but no question had been put to him regarding any such receipts. There is thus clearly no warrant for allowing any such additional evidence in appeal wow.

7. There can also be no escape from the conclusion that there is no material on record to support the bald statement of the defendant that he had been paying rent for these premises and had obtained receipts, if indeed such receipt were available, there is no explanation forthcoming why they were not produced at the proper stage before the trial court. This cannot, therefore, but be construed as a telling circumstance against the stand of the defendant.

8. A plea had also been sought to be raised that there was no access to the property in suit except through the shop on lease with the defenant. This too cannot be sustained, in view of the evidence, as noticed by the lower appellate court of D.W 1 Jagan Nath, to the effect that there is a door which opens towards Chaura Bazar and the main entry into it is through the door opening on to the Grand Trunk Road. This property, therefore also has an independent access. The judgment and decree of the lower appellate court thus warrants no interference in appeal and is consequently hereby up held and affirmed.

9. This appeal is accordingly hereby dismissed. The appellants are, however, given time till on or before July 31, 1987 to comply with the decree granted to the plaintiff subject to the condition that the appellant shall pay a sum of Rs. 3,000/- per month to the plaintiff for the use of the space in question with effect from January 1, 1987. The amount due at this rate till April 30, 1987 shall be paid to the respondent on or before June 1, 1987 and the balance amount of Rs. 3,000/- per month shall be payable to the respondent, in advance, on or before the 10th day of each month. This amount shall be payable to the plaintiff without any prejudice to any other claim that she may have against the appellant.

10. The respondent shall be entitled to her costs in this appeal.

H.L.S

Appeal dismissed.