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2025 Supreme(Online)(KER) 12288
HIGH COURT OF KERALA
M.A. ABDUL HAKHIM, J
BALAN – Appellant
Versus
OMANA P.K – Respondent
RSA 211/2025
P.A.MOHAMMED SHAH RENOY VINCENT SHAHIR SHOWKATH ALI CHELSON CHEMBARATHY ABEE SHEJIRIK FASLA N.K NANDA SURENDRAN SAHAL SHAJAHAN AQUIN KURUVILLA TOM M.N.MOHAMMED HUSSAIN
The distinction between a license and a lease is pivotal in eviction cases, with the court affirming the arrangement as a license based on agreement recitals.
Headnote:(A) Specific Relief Act, 1963 - Section 38 - Mandatory injunction - Eviction of defendants from shop rooms - Plaintiffs contended that the arrangement was a license, while defendants claimed it was a lease - Trial Court and Appellate Court found the arrangement to be a license, leading to a decree for mandatory injunction - No substantial question of law arose for interference. (Paras 1-9)
(B) License vs. Lease - The distinction between a license and a lease is critical in determining the rights of parties - The court upheld the finding that the arrangement was a license based on the recitals in the agreement. (Paras 6-8)
Facts of the case:
The plaintiffs filed suits for mandatory injunction to evict the defendants from shop rooms, claiming a license arrangement was terminated. The defendants argued it was a lease. The Trial Court ruled in favor of the plaintiffs, which was upheld by the Appellate Court. (Paras 1-4)
Findings of Court:
The arrangement was determined to be a license, and the decree for recovery of possession was set aside, limiting it to a mandatory injunction. The appellants were granted six months to vacate the premises under certain conditions. (Paras 9-12)
Issues: The main issues included whether the arrangement was a license or a lease and the appropriateness of the eviction order. (Paras 4, 9)
Ratio Decidendi: The courts found no grounds to dispute the characterization of the arrangement as a license, emphasizing the importance of the agreement's recitals and the lack of a timely dispute from the defendants. (Paras 8, 9)
Result: Regular Second Appeals dismissed with conditions for the appellants to vacate the premises.
JUDGMENT
1. These three appeals arise from three identical suits instituted by the same plaintiffs, these appeals are disposed of by a common judgment. Suits are filed for mandatory injunction to evict the defendant from the plaint schedule properties, which are shop rooms. Later the prayer for recovery of possession was also included by way of amendment.
2. The defendant in the suits is the appellant in these appeals. They have arrangements with the plaintiffs for the occupation of the plaint schedule properties. According to the plaintiffs, it is a license arrangement. They have sought a mandatory injunction to evict the defendants from the plaint schedule properties on the contention that the license is terminated by issuing notice to them.
3. The defendant opposed the suit prayers by filing a written statement contending that the arrangement is a lease and not a license.
4. The Trial Court rejected the contention and decreed the suits in favour of the plaintiffs finding that the arrangement is a license. Though the defendants filed appeals before the First Appellate Court, the same were dismissed, confirming the judgment and decree passed by the Trial Court.
5. I heard the learned counsel for the appellants Sri.Mohmmed Shah.
6. The learned counsel for the appellants contended that the recitals in Ext.A1 document would show that it is a lease agreement and not a license agreement. Any kind of control over the plaint schedule property is reserved in favour of the plaintiffs. No proper notice for terminating the lease was issued to the defendants. The suits as framed are not maintainable.
7. I have considered the contentions.
8. The Trial Court, as well as the First Appellate Court, after going through the recitals in Ext.A1 agreement in all these cases, found that the arrangement between the plaintiffs and the defendant is a license and not a lease. On going through the recitals in those documents, I also do not find any ground or reason to take a different view. The defendants have no case that they signed those documents without understanding the contents of the same. The plaintiff issued a notice terminating the license to the defendants, specifically stating that the arrangement is a license. No reply was sent by the defendants disputing the same.
9. The Trial Court granted a decree for mandatory injunction as well as recovery of possession against the defendants. The Appellate Court, though, dismissed the appeals, interfered with the decree, and set aside the decree for recovery of possession against the defendants. The Appellate Court set aside the decree for recovery of possession and limited it to the decree for mandatory injunction. No substantial question of law arises in the matter. I do not find any ground or reason for interfering with the judgments and decrees passed by the Trial Court as well as the First Appellate Court.
10. The learned counsel for the appellants submitted that the appellants have been conducting business in the plaint schedule properties for a considerable length of time and an immediate eviction from the plaint schedule premises will destroy their business and they need at least one year time to relocate their business to another premises after finding an alternate accommodation.
11. In view of the said contention, even though I am not entertaining the Regular Second Appeal, I am of the view that the appellants can be given a period of six months to vacate the plaint schedule premises subject to conditions.
12. In view of the aforesaid circumstances, I dismiss these Regular Second Appeals but at the same time permit the appellants to occupy the plaint schedule premises subject to the condition that the appellants shall file an Affidavit before the Execution Court undertaking to vacate the plaint schedule premises within a period of six months from today and subject to further conditions that the appellant shall clear all the arrears of rent/compensation till today within one month and shall also contin
