Important point
Suit for mandatory injunction after revocation of licence of licensee is maintainable provided licensor does take prompt action to evict licensee from premises.

Headnote:Indian Easement Act, 1882—Section 60(b)—Licence—Suit for mandatory injunction on revocation of licence—Maintainability—Respondent’s licence for the land on which respondent had built cinema house was renewed from time to time and on 11.2.1991 it was renewed for five years—Condition in agreement that on expiry of five years from 11.2.1991, licensee had to surrender vacant possession of suit schedule property on demolishing the building and structure thereon—Licensee died on 24.5.1994, before expiry of licence period—Suit for mandatory and prohibitory injunction filed on 12.2.1996 was decreed by trial Court and upheld by 1st appellate Court—2nd appeal was allowed by High Court holding that suit for mandatory injunction was not maintainable—Appeal—No question of law was formulated—Plea of maintainability of suit was raised before High Court for 1st time—Question was not a substantial question of law but one whose adjudication would depend upon factual adjudication of issue relating to reasonableness of time—Plaintiff’s explanation for filing suit in 1996 though licensee had died in 1994 was plausible—Impugned judgment was liable to be set aside.
       Held : There was no specific plea taken by the defendants that the suit should be one for recovery of possession and the suit for injunction is not maintainable. In fact, before the trial court and the first appellate Court the stress was on something else i.e. the effect of Section 60(b) of the Indian Easements Act, 1882 (in short the ‘Easements Act’) and the alleged non-maintainability of the suit on the ground of non-joinder of necessary parties. Before the High Court the plea was taken for the first time that the suit was not maintainable being one for mandatory injunction and for prohibitory injunction and not one for recovery. Strictly speaking the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. Licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee’s occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises the suit will be maintainable. It is to be noted that in the instant case the High Court has nowhere held that the explanation, as offered by the plaintiffs, was not acceptable. Without so holding, the High Court only took note of the period after which the suit was filed. The basic issue is whether the suit was filed within a “reasonable time”. As observed in Veerayee Ammal v. Seeni Ammal (2002(1) SCC 134), it is “looking at all the circumstances of the case; a “reasonable time” under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than `directly’; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.” (Paras 7 to 10)
       The explanation offered by the plaintiffs is plausible. The defendants did not specifically raise any plea that the time taken was unreasonable. No evidence was led. No specific plea was raised before the trial Court and first appellate Court. The question of reasonable time was to be factually adjudicated. For the first time in the Second Appeal the dispute essentially founded on factual foundation could not have been raised. In view of what has been stated by this Court in Firm Sriniwas case (supra) and Sant Lal’s case (supra), the inevitable conclusion is that the High Court’s judgment is not sustainable. (Paras 14 and 15)

Judgment

Arijit Pasayat, J.—Appellants call in question legality of the judgment rendered by a learned Single Judge of the Kerala High Court in a Second Appeal filed by the respondents holding that the suit filed by the present appellants as plaintiffs for mandatory injunction as well as for prohibitory injunction was not maintainable.

2. The suit was filed in the following factual background:

The plaint schedule property originally belonged to Francis Severance, the father of appellants 1 to 3 and grand-father of appellants 4 and 5. Francis Severance had four children and one of the sons, Joseph Severance, died in the year 1970. His widow was Hilda Severance. Said Francis Severance died in the year 1966. After the death of Francis Severance the plaint schedule property devolved on appellants 1 to 3. Shri K.V. Mathew, the husband of the 2nd respondent and father of respondents 1 and 3 and the 4th respondent entered into an agreement of licence with appellants and Hilda Severance with respect to the plaint schedule property under which permission was granted to Mathew to construct a cinema theatre for a period of five years. The licence was renewed from time to time and on 11.2.1991 by Ext. A1 agreement, the licence, was renewed for a period of five years. In the meantime Hilda Severance also died. The condition in Ext. A1 agreement was that on the expiry of five years from 11.2.1991, the licensee had to surrender vacant possession of the plaint schedule property on demolishing the building and the structures thereon. Before the expiry of five years mentioned in Ext. A1 agreement, the licensee, Mathew died on 24.5.1994. After that Ext. A2 notice was sent to respondents which yielded no result. The suit was filed on 12.2.1996.

3. The trial Court as well as the First Appellate Court found that on the death of Mathew the licence came to an end and thereafter the possession of all the four defendants were as trespassers. After finding that their possession was as trespassers both the trial Court and the First Appellate Court held that mandatory injunction can be granted as prayed for by the plaintiffs. Though some other points were urged during trial and before the First Appellate Authority, they were decided against the defendants. The main argument before the High Court in Second Appeal was that since they were trespassers the property could be recovered by the plaintiffs only by filing a suit for recovery of possession. The High Court accepted the plea and held that the suit as framed was not maintainable. It was held that where an ex-licensee is in possession the licensor can only seek recovery of possession from him which is the legal remedy whereas the remedy of injunction is an equitable remedy. It was however held that licensee’s occupation does not become hostile possession or possession of trespasser the moment the licence comes to an end. But for maintaining a suit against his licensee for mandatory injunction directing him to vacate the property the suit has to be filed without delay and with promptitude. In the instant case it was held that there was considerable delay in bringing the suit for mandatory injunction after the licence came to an end. Mathew (original licensee) died on 24.5.1994 and the suit was filed on 12.2.1996. The High Court held that there was unexplained delay in filing the suit. The notice which was issued was also after about 19 months of the death of the original licensee. Plea of plaintiffs was that they gave time to the defendants to wind up the business and with a view to avoid inconvenience to them and the suit was filed immediately after the expiry of the licence period. The High Court held that since the suit was filed not against the original licensee but against the legal heirs, the delay was abnormal. It was, however, held that though the licensee is the actual occupant but the licensor is the person holding the control or possession of the property through his licensee placing reliance on t

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2005 Supreme(SC) 1227

Important pointSuit for mandatory injunction after revocation of licence of licensee is maintainable provided licensor does take prompt action to evict licensee from premises.

Cases Referred (4)

Important point
Suit for mandatory injunction after revocation of licence of licensee is maintainable provided licensor does take prompt action to evict licensee from premises.