9911796707
TMI Blog2006 (1) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.03.2005 before this Court. The other prayer made in this application is that the application filed by the plaintiff under Order under Order XXXIX Rule 2 of CPC (IA No. 2061/2005), be heard and disposed of. The statement made by the learned senior counsel on 16.03.2005 which the defendants seek to withdraw reads as under :- Learned counsel for the defendants make a statement on behalf of the defendants that without prejudice to their plea that the plaintiff is a pure licensee and has no right to remain in the premises in question after termination of the license, the defendants assure this Court that till the next date of hearing, status quo shall be maintained in regard to the premises in question. 2. It is clear that the decision on the plaintiff's application under Order XXXIX Rule 2 of CPC would take care of the defendants request for withdrawal of the statement referred to above. To appreciate the submissions made by the parties for and against the passing of ad interim orders restraining the defendants from dispossessing the plaintiff from the suit property, it would be necessary to give a brief background of the facts. 3. The plaintiff is engaged in the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e levied by the government on the guests occupying the rooms in a luxury hotel. The plaintiff shall be bound by all the rules and regulations of the Local Authorities and Ministry of Tourism in force from time to time regarding the user of the licensed premises. The keys of the licensed rooms shall always be left by the plaintiff with the receptionist except the keys of the safe where the plaintiff keeps its valuables, foreign exchange, bills, other valuable documents and securities at the close of office hours each day, and defendant shall be at all times in legal possession of the licensed rooms. The overall control of the licensed rooms will always vest with the defendant. The right conferred upon Thomas Cook (India) Ltd. is only that of LICENSEE qua the said rooms. The arrangement between the plaintiff and the defendant is not that of LANDLORD and TENANT but of the LICENSOR and LICENSEE. The legal status of the plaintiff shall be that of a MERE LICENSEE and nothing more qua the said rooms. (b) That the plaintiff hereby give a solemn undertaking to the Court and further covenant with the defendant shall give and positively surrender peaceful possession of the licensed premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... license fee calculated on Daily Tariff Basis at fifty per cent discount in respect of two rooms payable from time to time along with all other charges levied by the Government on Luxury Hotels. The defendant shall provide to the plaintiff company during the period of stay of the plaintiff in these rooms, air-conditioning, cleaning facilities, maintenance and other facilities/services admissible to other guests rooms, in the hotel premises. The plaintiff shall not be entitled to make any structural additions/alterations in the licensed premises without the written consent of the defendant. The plaintiff shall be allowed to bring in only removable items of furniture and fixtures in the Licensed rooms and refurbish and licensed rooms as per its corporate designs. However, the plaintiff shall positively leave the keys/cards of electronic locking devices of the licensed rooms daily with the receptionist, except of the safe where they keep its valuables, foreign exchange, cash, bills, other valuable documents and securities at the close of office hours each day. (f) That the defendant has agreed to pay to Thomas Cook (India) Ltd., plaintiff a sum of Rs.20,00,000/- (Rupees twenty lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revoked by the defendants. Secondly, Mr. Kaul submitted, presuming that the license was revocable and presuming that the same had been validly revoked by the legal notice dated 15.02.2005, the plaintiff could still not be dispossessed except by way of due process of law. In support of his first proposition, Mr. Kaul relied upon the decision of the Supreme Court in the case of Ram Sarup Gupta v. Bishun Narain Inter College and Ors. [1987]2SCR805 . In support of his second proposition, Mr. Kaul relied upon the following decisions:- 1. Rattan Lal v. Municipal Corporation of Delhi 100(2002)DLT213 ; 2. R.V. Bhupal Prasad v. State of A.P. and Ors. AIR1996SC140 ; 3. Anamallai Club v. The Government of Tamil and Ors. AIR1997SC3650 ; 4. Union of India and Anr. v. Sohan Lal Puglia (2004)1SCC76 8 . 5. Arguing for the defendants, Mr Mukul Rohtagi, the learned senior counsel, submitted that the plaintiff was not entitled to any ad interim injunction. In fact, he submitted that the suit itself was misconceived. Recalling the chronology of events, Mr. Rohtagi submitted that when the plaintiff had instituted the earlier suit, the plaintiff had claimed the status of a tenant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, to do or continue to do, in or upon immovable property of the grantor, something which would, in the absence of such right, be unlawful. Section 54 of the Indian Easement Act, 1882 provides that a license may be expressed or implied from the conduct of the grantor. Section 60 of the said Act indicates the situations as to when a license could be revoked by the grantor. Section 60 reads as under :- 60. license when revocable --A license may be revoked by the grantor, unless - (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. 7. With reference to the provisions of the said Section 60, Mr Rohtagi submitted that since the license that was granted to the plaintiff in terms of the compromise decree was not coupled with a transfer of property nor had the plaintiff executed a work of a permanent character in the suit premises, the license was clearly revocable. Section 61 provides that a revocation of a license may be express or implied but according to Mr Rohtagi, we need not labour on this aspect inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 60 of the Act shall be irrevocable. Such agreement may be in writing or otherwise and its terms or conditions may be express or implied. A license may be oral also in that case, terms conditions and the nature of the license, can be gathered from the purpose for which the license is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the license. 9. Considering the observations made by the Supreme Court in the aforesaid decision, the propositions that can be culled out is that Section 60 is not exhaustive of the situations as to when a license may be revocable. For instance, the grantor of the license and the licensee by an agreement may make a license irrevocable even though none of the two clauses specified under Section 60 are fulfilled . Such an agreement may be in writing or otherwise and its terms and conditions may be express or implied. As legal principles, there cannot be any dispute with the aforesaid observations, however, what has to be seen is whether in the facts of the present case the license was revocable or irrevocable. Upon going through the terms of the compromise decree as set out in detail above one do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remain in possession even after the termination of license is not a mere trespasser in respect of the said property. The learned Judge held :- Law makes a distinction between persons in juridical possession and rank trespassers. Law respects possession even if there is no valid title to support it. Law does not permit any person to take law into his hands and to dispossess a person in actual possession without having recourse to a Court. The object thereby is to encourage compliance of the rule of law and to deprive the person who wanted a person in lawful possession removed from possession according to proper form and to prevent him from going with a high band and eject such person. Undoubtedly, the true owner is entitled to retain possession even though he had obtained it by force or by other unlawful means but that would not be ground to permit the owner to take the law into his own hands and eject the person in juridical possession or settled possession without recourse to law. 12. The learned Single Judge in the facts of that case held :- As already held above, even assuming that the petitioner after the alleged termination of the license was required to hand over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e approached the court, this Court settled the legal position that the landlord is not permitted to take forcible possession except in due process of law and they must obtain such possession as they are entitled through court of law as the law recognised. The possession of a tenant who had ceased to be a tenant, after expiry or termination of the lease, is protected by law until he is duly ejected. Although he may not have a legal right to continue in possession after the termination of the tenancy or after the expiry of the tenancy, his possession was at sufferance recognised to be juridical and that possession is protected by common law. 11. Suppose a person trespasses into government land and remains in unlawful possession, whether he is liable to be ejected under the Public Premises Act. Since Government has not recognised the right of the trespasser to remain in possession of the government land, the Government is free to take action as is available under law either under Public Premises Act or appropriate law. But the Government cannot forcibly eject the trespasser. In fact, this sort of controversy had arisen in East India Hotels Ltd. case. Therein, the licensor, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legality to the conduct or acts of the landlord to take possession of the property in derogation of the due course of law would be deleterious to rule of law and a pat on high-handedness or self-help. 12. It was held that so long as the licensee has not been evicted in execution of the decree lawfully obtained, his possession under Section 6 of the Act as a licensee is protected. Section 6 can be availed of to recover possession until he is lawfully dispossessed in due course of law. 15. In paragraph 13 of the said decision, the Court found that the possession of the appellant in that case was as a tenant at sufferance and was liable to ejectment in due course of law. The Court held that though his possession was not legal nor lawful but, as it was litigious possession, the appellant could remain in possession until he was ejected in due course in execution of a decree in a suit filed by the respondent. 16. In M/S Anamallai Club (supra), the Supreme Court was faced with the following question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he is dispossessed by use of force then, even though his occupation/possession was hitherto unlawful, he would still be entitled to be put back in possession in view of Section 6 of the Specific Relief Act. However, in the present case a different question emerges and that is whether a person who is in unlawful occupation can approach the Court for an injunction order restraining the lawful owner from dispossessing him. There is a distinction between this situation and the situation which arises post dispossession. In one situation the unlawful occupant has not yet been dispossessed, in the other he has already been dispossessed. Insofar as the latter case is concerned, the aforesaid decisions make it clear that such person is entitled to be put back in possession in terms of the provisions of Section 6 of the Specific Relief Act. However, these decisions do not specifically deal with the situation where the unlawful occupant has not yet been dispossessed but, he, in apprehension of such dispossession , knowing his occupation to be unlawful, rushes to court for an injunction restraining the rightful owner from taking any steps towards physically ejecting him. Now, the grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India AIR1954Bom358 . 13. We shall now refer to the other aspect of the matter. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, can the trespasser seek injunction against the true owner? In our view this question does not entirely depend upon Section 6 of the Specific Relief Act but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunctions? Recently, the law in this behalf has been clarified by the Supreme Court in clear terms in Maladeo Savlaram Shelke v. Pune Municipal Corporation [1995]1SCR543 . It was there held by Ramaswamy. J., after referring to Woodroffe on `Law relating to injunction; L.C. Goyle' Law of injunctions; David Bean `Injunction' Joyce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context the Supreme Court quoted Shiv Kumar Chandha v. MCD [1993]3SCR522 wherein it was observed that injun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle of the Court's discretionary power to grant injunction. 15. In our view injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to Court with clean hands. When he does these things there will be no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the Court to protect his illegal possession. 16. It is argued for the appellant that this may be anamolous. It is said that the trespasser has a right to an injunction against the true owner, and this is complementary to the duty of the owner not to evict the trespasser outside the judicial process. In our view, there is no anomaly. Each of these is based on a different legal principle. If the plaintiff wants the defendant to act in accordance with law he must first abide by the law himself and vacate the property as one would expect a law abiding citizen to behave. 18. Mr. Kaul sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle, he had succeeded in establishing his possession over the suit property which he was entitled to protect unless dispossessed there from by due process of law. On this finding the trial Court issued an injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the suit property. In the context of these facts, the Supreme Court observed that the law in India as it has developed does not permit persons to take forcible possession, they must obtain such possession as they are entitled to through a court. It referred to its earlier decision in the case of Lallu Yashwant Singh v. Rao Jagdip Singh [1968]2SCR203 , wherein it held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy had expired. The Supreme Court in the case of M.C. Chockalingam v. V. Manichavasagar 1974 (1) SCC 104 observed that the law forbids forcible dispossession even with the best of title . 20. After examining its various earlier decisions, the Supreme Court, in Rame Gowda (supra), concluded that so far as the Indian Law is concerned, a person in peaceful possession is entitled to retai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession. 23. After enunciating the aforesaid principles, the Supreme Court in the case of Rame Gowda (supra), ultimately, held that the injunction granted by the trial Court restraining the defendant from interfering with the peaceful possession and enjoyment of plaintiff over the property in question was justified. But this conclusion was based on the all important finding that the plaintiff therein was in settled po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 960]1SCR368 ) What is meant by parting with legal possession has been explained by the Supreme Court in the context of sub-letting in the case of Delhi Stationers and Printers v. Rajendra Kumar AIR1990SC1208 in the following words:- Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. Keeping these legal principles in mind, there is no doubt that the plaintiff merely had a right to use the two rooms. It cannot be said that the plaintiff was in possession thereof. This is clear from the facts, as aforesaid, that under the compromise decree the plaintiff was obligated to leave the keys of the rooms at the reception at the close of each day; the plaintiff was charged a daily tariff; the control and possession of the rooms was explicitly retained by the defendants; the rights of admission were reserved with the defendants. Under these circumstances it cannot be said by any stretch of imagination that the defendants had parted with possession or that the plaintiff was in possession of the said two rooms even during the period p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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