The main legal point established in the judgment is the significance of the intention of the parties and the exclusive possession of the premises in determining the nature of the relationship between the parties under the relevant provisions of the Transfer of Property Act and the Indian Easements Act.

Judgment

Mr. Gurbir Singh, J.

Challenge in the present revision petition is to the order dated 11.12.2023, passed by learned Appellate Authority, Gurugram, whereby the order dated 31.05.2022, passed by learned Rent Controller, has been set aside and appeal filed by respondent/landlord has been allowed.

2. The facts, which are necessary for adjudication of this petition are that the respondent/landlord filed a petition under Section 13(2) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as – the Act), for ejectment of the petitioners/tenants from the demised premises and for recovery of arrears of rent amounting to Rs.4,89,000/- and penalty/damages to the tune of Rs.6,30,000/- plus interest, on the ground that petitioner no.1 is a private limited company, petitioner no.2 is an Advocate and a businessman who is Director of petitioner no.1 along with petitioners no.3 and 4. In the year 2015, petitioner no.2 approached the respondent to take the premises on rent for his residential purposes and he is tenant in the premises on month-to-month tenancy since March 2015. Later on, in December 2019, petitioner no.2 informed the respondent that he would be leasing the premises through a company controlled by him and accordingly, petitioner no.1 took the premises under the Leave and License Agreement dated 07.01.2020. So, the premises was let out to petitioner no.1 for a period of 12 months, commencing from 01.01.2020 to 31.12.2020. It was agreed that the license fee would be paid by post-dated cheques covering the entire term, with the promise that the same would be honoured on presentation. Only two months’ payments were made and then cheques were dishonoured. The petitioners failed to pay the amount of rent/license fee payable thereafter.

3. The petitioners/tenants contested the petition submitting therein that there was no relationship of landlord and tenant between the parties. There was relationship of licensor and licensee, as per the license agreement, which was duly executed and registered on 07.01.2020 (Annexure P-1). Earlier there was lease agreement between the parties for a period of five years i.e. from 2015 to 2019 and thereafter, the instant agreement was executed deliberately. There is no exclusive possession of the licensed premises with the petitioners and they were having right to use the licensed premises along with the respondent. It was further submitted that no rent was to be charged, only license fee was payable. Application moved by the petitioners under Order 7 Rule 11 CPC was disposed of with the direction to frame issues qua the relationship between the parties. Therefore, unless the issue qua relationship between the parties is framed and decided, no provisional rent can be assessed. An application under Section 13(2)(i) of the Act, for assessment of provisional rent, was moved by the respondent, which was dismissed by learned Rent Controller vide order dated 31.05.2022 on the ground that there is no relationship of landlord and tenant between the parties. So, it was further held by learned Rent Controller that interest of the respondent/landlord stood protected because if the said relationship is established subsequently, then the tenant would lose the opportunity of making payment towards arrears of rent and would be liable to be evicted without any further opportunity. Therefore, the learned Rent Controller refused to pass order regarding assessment of provisional rent.

4. Appeal was filed by the respondent/landlord and the Appellate Authority, vide impugned order dated 11.12.2023, observed that the premises in question was let out to petitioner no.1 at a license fee of Rs.60,000/- per month for the first six months and it was to increase to a sum of Rs.65,000/- per month from July 2020 to December 2020 i.e. for the last six months. The license fee sought to be paid by the petitioners to the respondent was sort of rent. The payment of license fee, in the form of rent, itsel