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IN THE HIGH COURT OF BOMBAY
A. H. JOSHI, J.
JOSE AGNELO VIVEK ARAUJO, REMEDIOS ARAUJO
Versus
INDIA ELECTRON EXCHANGE LTD.
WRIT PETITION NO. 154 OF 2009
Decided On : SEPTEMBER 16, 2009
Decree on Admission - Nature of Occupation - [No specific act section referenced] - The court considered the nature of occupation and tenure as crucial factors for the decree on admission. The defendant disputed the claim of occupation under a leave and licence agreement and asserted it was a lease. The court found that the denial was clear and without ambiguity, leading to the dismissal of the petition.
Fact of the Case:
The plaintiff sought a decree on admission for possession based on the defendant's alleged occupation under a leave and licence agreement. The defendant disputed the nature of occupation and tenure, leading to a legal dispute.
Finding of the Court:
The court found that the defendant's denial of the nature of occupation and tenure was clear and unambiguous, leading to the dismissal of the petition for decree on admission.
Issues: The key issue was whether the defendant's denial of the nature of occupation and tenure constituted a valid ground for a decree on admission.
Ratio Decidendi: The court held that a denial with a clear explanation and without ambiguity cannot be regarded as a lack of denial. The nature of occupation and tenure being complex issues, the defendant's admission about tenure did not amount to admission of a crucial claim for the decree.
Final Decision: The petition for decree on admission was dismissed, and the parties were directed to bear their own costs.
( 2 ) THE plaintiff's suit for possession is pending.
( 3 ) PLAINTIFF wants that plaintiff's suit be decreed on admission. The claim for decree on admission is made by petitioner in the premises as narrated herein after.
( 4 ) THE plaintiff has claimed that the defendant is occupying the suit premises on leave and licence basis. The contents of para 3 of the plaint pertaining to the averment of licence read as follows :-
"3. The defendant began to occupy the said suit premises under an agreement of leave and licence. In fact after the terms and conditions had been agreed and settled and it was agreed that the agreement of leave and licence would commence from 1. 11. 2003, as the plaintiff had to go abroad before agreement of leave and licence could be signed by him. Therefore, the written agreement of leave and licence came to be executed subsequently on 15. 10. 2003 wherein the plaintiff's mother Mrs. Placida Araujo represented the plaintiff as the attorney. The said agreement for leave and licence was to commence from 1. 11. 2003 till 31. 10. 2006. "
( Quoted from plaint copy at page 27 of the paper book )
( 5 ) THIS plea of licence contained in third paragraph of the plaint has been answered by the defendant with following averments :-
"3. The contents of para 3 are false, incorrect and concocted, and therefore, denied. It is stated that, the defendant had been conferred the exclusive possession of the suit premises, not under any agreement of leave and licence, but under an agreement of lease. In this regard it is stated that, although, the agreement between the plaintiff and the defendant, dated 15. 10. 2003 was described as a leave and Licence Agreement, it was never in dispute or doubt, that, the parties to the agreement intended to create a lease in respect of the suit premises, in favour of the defendant. It is a settled position of law, that, it is the operative intent of the parties and not the nomenclature of the document, which determines the character of the transaction between the parties. . . . . . . . . . . . . . . . . "
( Quoted from copy of written statement at page 42 of paper book of writ Petition. Underlining is done for emphasis and for reference )
( 6 ) PETITIONER herein filed application ( Exhibit 41 ) contending that the contents of para 3 of the plaint have not been denied by the respondent, and therefore prayer (b) contained in the plaint needs to be decreed on admission.
( 7 ) PARA 2 and 3 of the application at Exhibit 41 foregoing reads as follows :-
"2. This fact has pleaded at para 3 of the plaint and the same has not been denied by the defendant in its written statement dated 25. 10. 2005 in the corresponding para.
3. The same thing, it has admitted in its written arguments filed on 29. 2. 2006 with respect to the application for temporary injunction filed by the defendant".
(Quoted from application at Exhibit 41 at page 17 of paper book of writ Petition )
( 8 ) THE respondent opposed denying the contents replying as follows :-
"2. With reference to contents of para 2 the same is wholly incorrect and untrue in as much as para 3 of the Written Statement categorically and in clear words denies the contents of para 3 of the plaint. Para 3 of the written statement under the caption of parawise reply reads as under : " the contents of para 3 are false, incorrect and concocted and therefore denied. It is stated that, the defendant has been conferred the exclusive possession of the suit premises, not under any agreement of Leave and Licence, but under an Agreement of lease. . . . . . . . . "
3. With reference to contents of para 3 the same is not admitted in as much as the Applicant has misinterpreted the submission made and the context in which the said submission was made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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