IMPORTANT POINT
It is not permissible to substitute a relief of mandatory injunction in place of eviction or recovery of possession.

JUDGMENT

P. Somarajan, J.—A suit for mandatory injunction to evict the defendant from the plaint schedule building was dismissed by both the Courts below finding that Ext.A2 agreement is not a licence but a lease, against which the plaintiff came up with this appeal.

2. The construction of Ext.A2 agreement by the courts below and whether it would constitute a lease or licence is certainly a substantial question of law for the purpose of this appeal. What makes the difference between lease and licence was elaborately considered by this Court in George Chandi and Others v. Beena and Others [2018 KHC 5252 = 2018 (4) KLJ 1] and laid down the tests to determine lease or licence. The nomenclature of the document is not decisive. A mere permission given to hold the property or to possess the same without having a right of possession would constitute only a licence. Ext.A2 is styled as a licence. Clause (1) deals with user of the premises and its occupation for a period of 11 months. Clause (2) deals with the payment of licence fee. Clause (3) says that licence fee should be paid on or before the first day of each month. Clause (4) permits to use the premises for the business of sale of LPG gas stove. Clause (5) directs the party to keep the premises clean and tidy and not to cause any damages. Clause (6) deals with payment of electricity charges by the licensee. Clause (7) enumerates the intention of parties in clear terms that what they have intended is only a licence. Clause (8) says that in case the party wants to continue the relationship after the expiry of the period agreed, the defendant is liable to pay an enhanced licence fee at the rate of 7.5%, based on which it was submitted that no such enhancement was demanded by the plaintiff even after the expiry of 11 months and the first demand was raised only after the expiry of four years. It was also submitted that the subsequent development should also be taken into consideration for detecting the nature of relationship. When Ext.A2 is construed in its strict sense with the aid of each and every clauses incorporated therein, it is clear that exclusive possession was not handed over to the defendant. Only a permission to occupy the premises for the conduct of the business was granted. There is nothing in Ext.A2 to show that exclusive possession was handed over to the defendant/licensee so as to hold the same as a matter of right. Clauses 1 to 7 deals with various terms agreed into by the parties. Provision made in the licence deed to attend repair works by the owner and for paying electricity charges by the licensee. Clause (7) was overlooked by both the courts below which specifies in clear terms what is the intention of the parties. They intended to create only a licence. Subsequent development that the landlord had not raised the claim of enhanced licence fee for a long period may not be sufficient to alter the relationship between the parties when they opted to reduce the same into writing under Ext.A2. The parties are bound by Ext.A2. Construction of Ext.A2 would show only a licence and not a lease. The intention of parties is well evident from the various clauses (Clauses 1 to 8), especially clause (7), wherein there is an assertion regarding the relationship created under that document. It is not at all safe or advisable to take away any of the clauses in Ext.A2 so as to arrive at a different conclusion than the one intended by the parties. The duty casts on the Trial Court and the First Appellate Court to construe Ext.A2 document in its correct perspective was not properly discharged.

3. Yet another question also came up for consideration as to whether it is permissible to grant a decree of mandatory injunction instead of a decree of eviction or a decree of recovery of possession. The suit is for mandatory injunction seeking to evict the defendant from the plaint schedule building. Mandatory injunction by its nature embodied under Section 39 of Specific Relief Act is discre