IMPORTANT POINT
In the facts and circumstances of the case High Court was right in its conclusion that the agreement was one of licence and not of lease.

Headnote:(i) Evidence Act, 1872-Sections 91 and 92-Scope and ambit (see paras 11 to 21).
       (ii) Delhi Rent Control Act, 1958-Section 16-Restrictions on sub-letting-Dispute between parties whether document was sub-lease or licence-No label attached-Consent of original landlord required-No consent-Appellant taking plea of sub-tenancy-Rejected by High Court-Whether correct? (Yes)-Increase of quantum of damages from 500/- p.m. to 1200/- p.m. by High Court-Whether justified? (Yes)-Appeal dismissed with costs.
       Held : It is to be noticed that though no label attached to the agreement, it does not specify any monthly amount to be paid by the appellant to respondent. Therefore, the question of any fixed monthly rent does not arise. The High Court has also taken note of several other instances to conclude that the agreement was one of licence and not of lease. That being the position, the conclusions of the High Court are in order and do not warrant interference. Admittedly, there was no consent of the original landlord to create sub-tenancy in terms of Section 16(2) of the Rent Control Act as noted above. Since there is no consent of the landlord, something which is forbidden by law could not be pleaded. That being the position, the High Court was justified in rejecting the plea of sub-tenancy. (Paras 26 and 27)
       Held later : One plea which is urged with some amount of emphasis was increase of the damages from Rs. 500/- p.m. to Rs. 1200/- p.m. As noted supra, with the consent of the parties the High Court had exercised powers under Order 41, Rules 30, 32 and 33. It took note of the ground realities which were not disputed before us. High Court recorded a positive finding that in the normal course the appellant would have paid at least Rs. 1200/- per p.m., though the amount payable was more than, even for the period for which accounts were rendered or were to be rendered. It was fairly accepted by learned counsel for the appellant before us that the rentals in the area have increased by leaps and bounds after 1980. That being so, the specious plea that there was no scope for enhancement of the quantum of damages fixed by the trial Court is indefensible, Judged from any angle, the appeal is devoid of merit and deserves dismissal with costs which we direct. In a case of this nature, waiver of costs would be acting with leniency on a person who deserves none. Costs fixed at Rs. 25,000/-. (Para 31)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

This case is a classic example of a just cause getting defeated by setting up dubious pleas and depriving a party of what is legally due to him. It is one of those innumerable cases where course of justice has been attempted to be deflected by factual and legal red herrings.

2. Appellant is the defendant in a suit filed by respondent-plaintiff No. 1 for recovery of consolidated and expected commission/rendition of accounts and possession of Premises No.15A/16-I, Ajmal Khan Road, Karol Bagh, New Delhi.

3. As per suit averments respondent-plaintiff No.1 was a tenant in respect of the aforesaid premises on a monthly rent w.e.f. 15-3-1962. The shop was registered under the Shops and Commercial Establishments Act, (in short the Establishment Act ) in the name of M/s Esquire, of which respondent-plaintiff No. 1 was the proprietor. Later on, the name of the concern was changed to M/s. Purshotams. For all intents and purposes there was no change of proprietorship. Plaintiff No. 2, Tahil Ram is the father of respondent-plaintiff No. 1 and his power of attorney holder. Tahil Ram entered into an agency-cum-deed of licence with the appellant-defendant on 15-5-1975 and the terms of such agency-cum-licence agreement was incorporated in an agreement dated 15-5-1975. Earlier, the appellant-defendant was having his business as tailors and drapers at A-7, Prahlad Market, Deshbandhu Gupta Road, New Delhi. He had approached respondent-plaintiff No. 1 for use of his premises in question under his tenancy as a show room on licence-cum-agency basis. As per the agreement, plaintiffs were to receive their commission @ 12 on tailoring business and @ 3 commission on the sale of materials of all kinds as conducted by the appellant-defendant. Possession of the shop continued with the plaintiffs alongwith the tenancy rights. The agreement was initially for a period of five years, with option of extension by mutual consent. The agreement expired on 14-5-1980 and was never renewed thereafter. In terms of clause 5 of the agreement, the appellant-defendant was to keep separate accounts of the tailoring and cloth materials; and therefore, he was an accounting party. The agreement was duly acted upon and at no point of time possession was delivered to the defendant and as noted above, remained with the plaintiffs. Later on, for his own convenience, defendant brought his tailors for tailoring business. Defendant has trespassed by destroying all traces of evidence of possession and has started displaying the signboards and other advertisement materials, as if M/s Roop Tailors and Drapers are conducting business in the suit premises. Accounts were rendered up to 30-6-1976. Payments were made by cheques and by other modes. Accounts were also rendered up to 31-3-1978 by the defendant under his own hand and signatures. After that date, defendant neither rendered accounts nor made any payment in spite of repeated reminders and requests. Legal notice was served through registered post for payment of commission, and a demand was made for true and faithful rendition of accounts. After 14-5-1980, defendant was asked to vacate the premises, but he forcibly continued to occupy the premises. This led to initiation of proceedings under Section 145 of the Code of Criminal Procedure, 1973 (in short the Cr.P.C. ). Defendant to frustrate the legal demands of the plaintiffs filed a suit for injunction. Though, the period of the agency-cum-licence deed expired on 15-5-1975, the defendant continued to remain in possession. On the ground of limitation, the plaintiffs claimed what is due from 1-10-1977 to 31-3-1978 which came to be Rs. 7,000/- and from 1-4-1978 to 14-5-1980 the commission was estimated to be about Rs. 70,000/-. Claim of damages at Rs. 6,000/- from 14-5-1980 to 14-10-1980 was made for a period of five months. Plaintiffs also claimed a decree for possession of the shop along with a decree for damages and for payment of the comm

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2003 Supreme(SC) 394

IMPORTANT POINTIn the facts and circumstances of the case High Court was right in its conclusion that the agreement was one of licence and not of lease.

Cases Referred (8)

IMPORTANT POINT
In the facts and circumstances of the case High Court was right in its conclusion that the agreement was one of licence and not of lease.