TMI Blog1987 (11) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... petition in this case. The premises in question belongs to the Bombay City Weavers Cooperative Limited. They filed ejectment proceedings against one Sugrabhai Mohammed Husain, their tenant and obtained a decree. It is stated that the appellant was a monthly tenant of the suit premises since about 2nd February, 1965. On or about 9th of February, 1965 a fresh document of that date, was executed and it is alleged that the appellant continued by virtue of that agreement. It is alleged that this agreement was entered into between the parties since the respondent wanted to charge more rent or mesne profits. This agreement is in writing and this was for a period of five years, i.e., from 1st September, 1965 to 31st of August, 1970. The main contention involved in this appeal is whether the appellant was a tenant or a licensee? The answer would be dependent upon the construction of the aforesaid document. It is necessary, therefore, to refer to the said agreement in little detail. The agreement is described as an agreement of 'leave and licence' entered into between the respondent on the one hand and the appellant on the other wherein the respondent had been described as the 'l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id premises with him and shall be at liberty to work in the said premises for twenty hours subject to restriction of rules and regulations imposed by the Municipal or any other local authority or authorities. It is further provided that the licensee shall be alone responsible and liable for any breach or contravention of any rule or regulation of the said authorities and he shall indemnify the licensor therefor. The document further stipulated that the licensee shall be at liberty to construct loft and electric fittings and apparatus and tools and shall be entitled to the ownership thereof and shall be free to carry away such articles and the licensor agreed and undertook that he shall not obstruct the removing of such articles at the time of the delivery of the possession of the said workshop. It is further mentioned in the said agreement that it was agreed by the licensee that if he commits any default of any terms and conditions or fails to pay the compensation for two months or if the licensee at any time puts up false or adverse claim of tenancy or sub-tenancy the licensor shall be entitled to terminate the agreement and cancel and revoke and withdraw the leave and licence gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that he was a direct tenant of the respondent. Without prejudice to the above contention it was contended by the appellant that the respondent was not the owner of the workshop and also denied that he had given the workshop to respondent for conducting business. The submission was that there was sub-tenancy by the respondent in favour of the appellant as a monthly tenant of the business with the articles and machinery belonging to the appellant and not to the respondent. On those grounds it was contended that ejectment proceedings was liable to be rejected. It was recorded by the court with the expression B.C , a term of some ambiguity as explained later, that the appellant was not claiming protection as a sub-tenant under the Rent Act but only the subtenancy as such and therefore, it was recorded that as agreed 'B.C'. no preliminary issue was to be framed. The learned Judge, noted that the only point that arose for consideration was whether the appellant proved that he was a sub-tenant as such or not. It is interesting to note that in the judgment of the Small Cause Court and also of the High Court at several places the expression B.C. was used; this is intrigu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 2181 of 1977 by which the case was sent back to the High Court for a fresh decision, keeping in view the decision of this Court in D.H. Maniar and others v. Waman Laxman Kudav, [1977] 1 S.C.R. 403. Thereafter the High Court disallowed the special civil application by its order dated 17th of November, 1980. That decision was a case where the appellants therein had granted a licence in respect of certain shop premises in Bombay to the respondent under a Leave and Licence Agreement which expired on 31st March, 1966. Thereafter the appellants had served a notice upon the respondent calling upon him to remove himself from the said premises. The respondent refused to do so. In July, 1967 the appellants filed an application for eviction under section 41 of the Presidency Small Cause Courts Act. The contention of the respondent that he was a tenant was negatived by the Small Cause Court, Bombay. The respondent approached the High Court under Article 227 of the Constitution. The High Court refused to interfere with the finding of the Small Cause Court that the respondent was a licensee and not a tenant. The Bombay Rent Act was amended by Maharashtra Act 17 of 1973. By the amending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might in certain circumstances have the effect of putting an end to the licence if it was subsisting on the date of its filing. But that cannot possibly have the effect of reviving the licence as opined by the learned Judges. Such a proposition of law, it was further concluded by this Court, was both novel and incomprehensible. It was further held that it was right that the Court should act in consonance with the spirit of the Maharashtra Amending Act 17 of 1973, but the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity. It was observed that the finding of the High Court that the respondent was in occupation of the premises under a subsisting licence was wholly wrong and suffered from serious infirmities of law and fact and deserved to be set aside. The High Court disallowed the special civil application under Article 227 of the Constitution on 17th of November, 1980 and that is the judgment impugned in this appeal. The High Court in the judgment under appeal noted that if it was held that the document created a lease rather than a licence than the tenant would be entitled to protection. The Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. The Court of Appeal in England again in Cobb v. Lane, [1952] 1 All E.R. 1199 considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. Somervell, L.J., had observed: ... The solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties. Denning, L.J. also reiterated the same decision. Reviewing these decisions Denning, L.J. had observed at page 384 of the report (1) that to ascertain whether a document created a licence or lease, the substance of the document must be preferred to the form; (2) the real test was the intention of the parties-whether they intended to create a lease or a licence; (3) if the document created an interest in the property, it is a lease; but if it only permitted another to make use of the property, of which the legal possession continued with the owner, it was a licence; and (4) if under the document a party got exclusive poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a lease. Clause (12) is significant which gave to the licensor the right to enter upon the premises and inspect the same at any time. In our opinion the background of the facts of this case and the background of the entire document negate the contention of the appellant that it was a lease and not a licence.good deal of submission was made before us that if it was a lease and not a licence, then this point could be taken in aid of the submission that the Court had to jurisdiction, and there was no estoppel. It was contended that estoppel was a plea in equity and that there was no equity in favour of the respondent. We were invited to embark upon the traded field of estoppel and equity and very many learned passages from judgments of eminent Judges of Calcutta, Bombay and of this Court were cited. But in this case we had not been tempted. Our attention was drawn to several decisions but in the view we have taken we cannot say that the view taken by the High Court or the Court of Small Causes was incorrect. It was a possible view. That is sufficient for us. The distinction between leave and licence has been well summarised in Halsbury's Laws of England, Fourth Edition, Volu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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