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TMI Blog1991 (9) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... per month, belonging to the company, for a period of 12 years. The leave and licence agreement inter alia provided that at the end of the said period of 12 years, the company shall, on the application of the licensee in writing, renew the licence for another period of 12 years if the company so deems fit on the terms and conditions to be mutually agreed upon. Admittedly the company repaid the entire loan and interest within the schedule period. The company by a letter dated 17th September, 1984 reminded the bank that the agreement was going to expire on 31st December, 1986. The company also stated that as they were cramped for space, the bank should vacate the premises at the end of the term. The company by another letter dated 18th April, 1986 again requested the bank to vacate the premises by the end of December, 1986. The bank by its letter dated 8th July, 1986 requested the company that the period of license may be renewed for a further period of 12 years. The company by its letter dated 9th August, 1986 informed the bank that the request for renewal of licence was not acceptable and again requested the bank to handover vacant possession on the expiry of the term. The bank did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hearing of the notice of motion be treated as the hearing of the suit. Thereafter, the arguments were heard and the suit was decreed by judgment dated 6th November, 1990. Aggrieved against the judgment the defendant company has come in appeal to this Court. 6. The High Court framed the following two issues. (1) Whether the suit by the plaintiffs under Section 6 of the Specific Relief Act, is not maintainable? (2) If issue No. 1 is answered in favour of the plaintiffs, whether the plaintiff is entitled to any relief, if so what? The High Court after considering the various authorities held that the plaintiff bank was no doubt a licensee but even after the expiry of the licence period it can not be dispossessed otherwise than in due course of law and the plaintiff being in settled possession for a long time, was entitled to file a suit under Section 6 of the Act. However, it would be important to note that though the High Court decreed the suit but looking to the facts and circumstances of the case observed as under: However, before I Decree the Suit, in my view, it is necessary to state that, in my view it is time that Courts take note of the reality existing today, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In my view, this is the course which the Defendants must adopt. Therefore, whilst relief cannot be denied to the Plaintiffs, some opportunity must be given to the Defendants to obtain such Orders as they may be advised to protect their rights in the property. Under these circumstances, there will be a Decree in favour of the Plaintiffs and against the Defendants in terms of prayers (a) and (b) of the Plaint. However, the Decree in so far as it relates to handing over to the plaintiffs possession of the suit premises viz. the mezzanine floor of Hotel Oberoi Towers , Nariman Point, will be stayed for a period of 1.0 (ten) weeks from today. There will be no Order as to costs of the suit. I clarify that the observations which I have made above regarding the conduct of the Plaintiffs are mere prima-facie observations. I have not considered the merits of the rival claims between the parties. The Court which will be considering the Defendants case will undoubtedly ignore these observations for the purpose of considering what reliefs should be granted to the Defendants. 7. We have heard learned Counsel for both the parties and have perused the record thoroughly. There can be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the premises to the company before 31st December, 1986, continued to remain in unlawful possession as a trespasser. A fire then broke out on 12th April, 1990 without any fault of any party and which compelled the bank to close its business and to vacate the premises for all practical purposes and to start the business elsewhere. The case of the bank as set up in para 8 of the plaint reads as under : The Plaintiffs submit that there was a fire in the Oberoi Towers on 12th April, 1990 as a result whereof some of the equipment, furniture; and records etc. of the Plaintiffs were partially damaged. After the fire on 12th April, 1990, the Defendants gave permission to the Plaintiffs and other shop keepers in the Shopping Arcade to enter their respective premises two or three times in a week. However, since about the 3rd week of May 1990 the Defendants permitted the Plaintiffs' representatives to enter their premises on every Monday, Wednesday and Friday of the week. Thus according to plaintiffs' own showing as a result of fire in the Oberoi Towers on 12th April, 1990 some of the equipment, furniture and records of the plaintiffs were partially damaged. After this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the parties as to how the key was given by the plaintiff bank to the company but it is an admitted position that no force was applied in doing so. On the above admitted facts of the case, the important question which calls for consideration in the present case is whether in the circumstances mentioned above the plaintiff is entitled to get any decree for possession under Section 6 of the Act. We have no hesitation in holding that the purpose behind Section 6 of the Act is to restrain a person from using force and to dispossess a person without his consent otherwise than in due course of law. In the present case in our view the plaintiff has not been dispossessed by using any force. Admittedly the bank is a licensee and the period of such licence came to an end on 31st December, 1986 and thereafter its possession was that of a trespasser. On account of fire having broken out on 12th April, 1990 the bank had to stop its business and in fact it has started its business at some other place. In case the intention of the company would have been to dispossess the bank by force, it could have done so soon after the expiry of the period of licence, but admittedly nothing was done for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed for an interim relief. That being the position the result of granting any decree in this litigation under Section 6 of the Act would not serve the ends of justice and at the same time it would unnecessarily prolong litigation between the parties which would be a waste of public money as well as the valuable time of the Courts. We cannot lose sight of the fact that the plaintiff bank is an instrumentality of the State and it should honour its commitments and not to indulge in futile litigation at the cost of public money. 13. The cases cited at the Bar do not deal with the situation and circumstances as arising in the case in hand before us. Those cases deal with tenants holding over after the expiry of the term of lease and such possession after holding over is entirely different from the case of a licensee remaining in occupation after the expiry of the term of licence. The position of such licensee is no better than a trespasser and if the true owner comes into possession of the premises without using any force or on account of fire or other act of vis major, in my view it would not be in the interest of justice to grant a decree for possession in favour of such license ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, in other words, to dispossess the person in occupation should not camouflage the consequences that would flow from the action. The resultant effect must be considered in their proper perspectives and the law should be put on rails preventing deflection of the course of justice, in particular under Article 141 of the Constitution. Lest the people lose faith in the efficacy of the rule of law. The conduct of the litigant, be it a corporate personality or an ordinary citizen whether would be relevant to diffuse the effect of law made me to have anxious reflections on the questions raised reminding myself that perceptual or attitudinal slant, however small it may appears to be, would give birth to immense consequences. This made me, despite my profound and personal respect to my learned brother, with all humility at my command to express my inability to agree with his proposed draft judgment. 19. I preface with an observation that an interesting but ticklish question of law of far reaching consequences has arisen for decision from the material facts set out in the judgment of my brother. But to have coherence, I set out few material facts. The appellant, the owner of the Hotel O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed that the appellant had promised to hand-over the premises to the respondent within three or four months on carrying out the repairs and renovation work. Despite the respondent's asking the appellant to hand over possession to it, the appellant did not do the same. On the other hand by a letter dated June 19, 1990, the appellant asked the respondent to remove all its belongings which necessitated the respondent to lay suit No.2735 of 1990 for possession, on the Original Side of the High Court at Bombay on August 29, 1990, under Section 6 of the Specific Relief Act 47 of 1963 for short 'the Act' and took out notice of motion on August 29, 1990 for appointment of a receiver and injunction. In terms of the undertaking given by the appellant the Court passed an order on August 30, 1990 which was upheld in Appeal No.961 of 1990 dated September 12, 1990. While the Receiver petition was being argued, Shri Nadman made with prejudice offer that he was prepared to treat the hearing as a trial of the suit and that the affidavits, evidence and documents would be the base to decide the suit. It was also stated as narrated in the High Court judgment, that defendants are wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k must be illegally dispossessed and then only the suit under Section 6 would lie. The appellants committed no illegality in taking possession of the demised premises. Alternatively it was contended that after expiry of the period of licence on December 12, 1986, the respondent is a trespasser, and a trespasser thrown out of possession cannot claim possession under Section 6 against the true owner. Even on that premise also the decree for possession is illegal. The High Court having found that the respondent had vacated the premises due to fire having been broken, went wrong in holding that the suit is maintainable. 22. Shri Ganesh, learned Counsel for the respondent contended that as Shri Nariman conceded in the High Court that the respondent had been dispossessed from the suit premises, it is no longer open to the appellant to contend that the respondent has not been dispossessed. This Court has to proceed on the finding recorded by the High Court that the respondent had been dispossessed and from that date the suit was admittedly filed within 6 months. The respondent claimed renewal in terms of the contract. The possession of the respondent is not that of a trespasser but is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession. It also claimed that it had a right to renewal under the contract. Since civil suit is pending, it is not necessary to consider whether it is a lease or licence. Suffice to proceed as pleaded that it is a licence. Sri Nariman conceded in the High Court as extracted hereinbefore, that without prejudice to their right and for the purpose of the suit, the respondent was dispossessed in the manner spoken to in the plaint. The High Court also proceeded on this footing. The counsel for the respondent therein, though objected to and insisted upon the trial of the suit, he agreed to argue, due to the concession made by the counsel for the appellant. In fairness to Shri Nariman, he reiterated before us that he made the concession as extracted by the High Court. In my considered view, it is not open to the appellant to contend now that the respondent had not been dispossessed from the suit premises. As stated in the pleadings and is clear from the documents filed in support thereof that the respondent claimed that it delivered possession to the appellants only to effect renovation and refurnishing of the suit premises with an undertaking to redeliver possession. They retained anim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficacy of the rule of law as it germinates, generates or inculcates disbelief and apathy therein and drives the people to extra legal remedies. In my considered view, therefore, that possession obtained either by violence, misrepresentation, fraud, coercion, undue influence, seemingly innocuous but hidden with oblique motive or any other mode or method unlawful or otherwise except in due course of law attracts Section 6. Law frowns upon such conduct. The court accords legitimacy and legality only to possession taken in due course of law. In Section 6 proceedings the consideration of the right, title or interest in immovable property either of the person claiming possession as an owner or under colour of title or person dispossessed or threatened to be dispossessed are irrelevant. It concerns itself whether the person was dispossessed without his consent and in due course of law and whether the suit was laid within six months from the date of the suit. The claim based on title or possessing title, after six months, would be gone into in a suit under Section 5 of the Act. Therein all relevant considerations would enter into the area of consideration. 28. Section 52 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge people to adopt any means fair or foul to dispossess a person unless dispossession was in due course of law or with consent. 31. What is meant by due course of law? Due course of law in each particular case means such an exercise of the powers by duly constituted Tribunal or Court in accordance with the procedure established by law under such safeguards for the protection of individual rights. A course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a Tribunal competent by its constitution, that is bylaw of its creation, to pass upon the subject-matter of the suit or proceeding; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the Tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an take possession unilaterally except in due course of law, though the respondent had no legal title. In Jeewanmal and Ors. v. Dr. Dharamchand Khatri and Ors. MANU/RH/0023/1971, the court discountenanced the incompetent Mandi Development Officer taking over possession of the land from the petitioners. Even the modicum of procedure followed by the Board to take possession was held to be not in regular normal process . In Neyveli Lignite Corporation's case (supra), the respondent, a tenant holding over who was given on lease to run a canteen, on expiry of the lease, did not vacate it, though asked for. The security officer with the assistance of the police made an inventory of the articles and kept the furniture in a room therein and had taken possession. Though he was present, the tenant did not object to taking possession but later on issued a legal notice claiming damages from the Corporation. Thereafter the lock was removed and the goods were thrown out and the respondent filed a suit under Section 9 of the old Act. In that factual background the Division Bench held that the law recognises right to possession as a substantive right or interest which exist as certain legal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings in the High Court Section 15A was brought on statute conferring on existing licensee the status of a tenant under that Act. It was contended by the respondent that he was entitled to the protection of Section 15A to remain in possession. On those facts, this Court held that the licensee under a subsisting agreement of licence, alone is entitled to the protection of Section 15A as a tenant to continue in possession of the premises. After termination, withdrawing or determination of the licence, if he continues to occupy it as a trespasser or a person who has no right to continue occupation of the premises, such a person cannot be called a licensee at all. It is clear from the factual scenario that this Court did not consider the scope of Section 6 of the Act and the nature of possession of a licensee after termination. In Saut Lal Jain v. Avtar Singh [1985]3SCR184 , this Court held at p. 189A that the principle that once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. This Court approved the ratio in Milkha Singh and Ors. v. Diana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period, and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than was necessary. Such entry will be viewed as a resistance to an intrusion upon possession which has never been lost. The person in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force . In Puran Singh v. State of Punjab (1975) SCR 299, while following the ratio in Munshi Ram's case, this Court held that it is difficult to lay clown any hard and fast rule as to when the possession of a trespasser can mature into settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as C. Malkani AIR1954Bom358 , was also to the same effect. The facts were that the respondent Naraindas was put in possession of a flat by the Ministry of Defence as a displaced person on monthly tenancy. A notice to vacate the premises was given by the Union but was resisted. The possession was taken under the provisions of Act 26 of 1950 which provided summary remedy for ejectment as an unauthorized occupant . The question therein was whether the respondent was an unauthorized occupant. Chagla, C.J. speaking for the Division Bench, held that a trespasser is one who had come into occupation of the government premises without any authority or contract and to him remedy under Section 9 was not available. But the respondent having had possession legally and after determination of the tenancy, he was tenant holding over his possession was held to be juridical. Chief Justice Chagla in those circumstances held, on which Shri Nariman placed strong reliance, that a trespasser who has been thrown out of possession cannot get into possession under Section 9 which question vis-a-vis the licensee did not arise for consideration therein. In Lallu Yeshwant's case, though approved the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad's case whose ratio was approved by this Court in Lallu Yeshwant Singh's case. In Yar Muhammad's case it was held that possession is prima facie title and if a person who is in possession is dispossessed, he has a right to possession from the person who dispossessed him, even if he is unable to prove title. A suit under Section 9 is entirely different from the suit based on title for possession. A person dispossessed is entitled to succeed simply by showing (1) that he is in possession; (2) he has been dispossessed by the defendant; (3) that dispossession is not in accordance with law and (4) that dispossession took place within six months of the suit. No question of the title either of the plaintiff or defendant can be raised or gone into in that case. Far from helping the appellant the ratio in Yar Muhammad's case goes against it. In Ayodhiya Prasad Belihar Sao and Anr. v. Ghasiram Premsai Nai AIR 1938 Nagpur 326, the plaintiff/petitioner was inducted into possession under an unregistered sale-deed and remained in possession for four years, was held to be in excusable possession and the decree under Section 9 of the old Act was directed to be made. It was furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter but not to the continuance in possession of the licencee after the expiry or termination of the licence. That was what this court appears to have meant in the previous decisions. Take for instance that when a licence was granted for a couple of years and after its expiry, by efflux of time, or on termination, if the possession of the licensee, though unlawful and unjust is not protected, the aggressor or mighty would trample upon the rights of the weak and meek and denial of relief under Section 6 would put a premium upon the aggression or treachery or tricks. No doubt long delay in disposal of cases due to docket explosion became a ruse to unscrupulous litigant to abuse the due course of law to protract litigation and remain in unjust or wrongful possession of the property. Landlord could be suitably compensated by award of damages. It cannot, by any stretch of imagination, be said that a person in settled possession, though unlawful, is not entitled to the protection under Section 6 of the Act. Maintenance of law and order, and enthusing confidence in the efficacy of rule of law are condition precedent for orderly society. Therefore, giving primacy, legitimacy or lega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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