Important Point :
Appeal under Section 96 of Code of Civil Procedure would lie only against a decree.

Akil Kureshi, J.

This appeal is directed against the judgment of the learned Single Judge dated dated 11.06.1991 in First Appeal No.771 of 1982. We would like to borrow facts from the judgment of the learned Single Judge. One Haridas Kevalram was the owner and landlord of Shop No.D-23, situated at Gandhidham, Kachchh. He gave that shop on lease to Thadharam Chavla, father of original plaintiffs no.1 and 3 and husband of plaintiff no.2. This happened some time in the year 1951. In January 1959, Thadaram gave the shop to the defendants under various documents executed from time to time. Thadaram died in October 1966. On 20.10.1972 an agreement- Exh.129 came to be executed between the plaintiffs and defendants which was titled as “agreement to run a business”.

1.1 The plaintiffs filed Special Civil Suit No.84 of 1977 against the defendants and prayed for direction to defendants to hand over peaceful charge of running business of Chawla Cafe and Milk Bar situated at Shop No.D/22-23 at Gandhidham along with all its property articles as shown in the list attached with the licence agreement dated 20.09.1972. They also claimed Rs.4,100/- towards arrears of licence fee due from 01.01.1977 to 19.09.1977. They also prayed for direction to the defendants to account income and expenditure of the suit business.

2. According to the plaintiffs under the said agreement, exh.129, the plaintiffs had given the suit premises to the defendants by way of licence for running shop for manufacturing ice candy and to run business in the name of Messrs Chawla Cafe & Milk Bar for a period of five years. According to the plaintiffs the term of licence expired on 19.09.1977 and the defendants did not express any desire to renew licence in terms of the said agreement. The plaintiffs were therefore, entitled to take back the business as well as possession of the suit premises. According to the plaintiffs defendants also committed breach of terms of licence as they had not paid licence fee regularly.

2.1 The defendants appeared and filed written statement- exh.46 in which they contended, inter alia, that civil court has no jurisdiction to entertain the suit. In view of the fact that the plaintiffs are tenants of the original landlord and defendant no.2 is sub-tenant any suit for recovery of rent must lie before rent court. The defendants also raised issue of res judicata contending that several litigations between the parties had taken place in the past and judgments of the competent courts would bind both the sides. According to the defendants in one such proceedings they were declared as tenants of the suit property. To several past litigations referred to by defendants, we would make mention at a later stage.

3. The Trial Court raised several issues including regarding maintainability of the suit, jurisdiction of the Court to try the same, regarding question of res judicata as also regarding the true import of the agreement, exh.129. The Trial Court also framed an issue at the instance of the defendants whether the defendants prove that they had executed the said agreement under misrepresentation.

4. The Trial Court held that the agreement in question was not in the nature of leave and licence and that the same could not have been executed in face of judgment of the previous litigation. The Trial Court held that the plaintiffs were not entitled to any relief, however, with respect to execution of document under misrepresentation or fraud the Trial Court held in favour of the plaintiffs.

5. Judgment of the Trial Court was carried in appeal by the plaintiffs before the learned Single Judge. The learned Single Judge in detailed judgment reversed the judgment of the Trial Court and allowed the appeal. The learned Judge on the basis of pleadings and submissions made before him noted that merely two points came up for consideration, viz.

(i) Whether what was granted by the appellants to the respondents under the suit agreement was a licence or whether it was a