- (1.) PRESENT Appeal From Order under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellant herein original plaintiff to quash and set aside the impugned order dated 28.04.2011 passed by the learned Chamber Judge, Court No.16, City Civil Court, Ahmedabad below Notice of Motion Exh.6/7 in Civil Suit No.476/2011, by which the application submitted by the appellant for interim injunction, to restrain the defendant, its trustees, agents and servants from taking law in their hands and from taking forcible possession of the tennis ground housed in Bajrang Maidan (of Shreyas Foundation) and further to restrain the defendant, its agents and servants from creating hurdles, obstructions, in the use of parking facilities and from creating hurdles in the use of ancillary (toilet) facilities available at the said tennis ground situated in the Bajrang Maidan, has been rejected.
(2.) THAT the appellant herein original plaintiff has instituted a Civil Suit No.476/2011 in the City Civil Court, at Ahmedabad for permanent injunction and declaration that the defendant, its agents and servants and/or trustees have no right to take law in their hands and take the possession of the disputed ground and/or disturb the possession of the plaintiff which is being used by the plaintiff as a tennis ground as tenant. In the said suit the plaintiff has also prayed for permanent injunction permanently restraining the defendant, its agents and servants from creating hurdles and/or obstruction in the use of parking facilities and from creating hurdles in the use of ancillary (toilet) facilities available at the said tennis ground. It was the case on behalf of the plaintiff that plaintiff is in possession of the suit premises/ground since 2005 as tenant. That in the year 2005, rent was fixed at Rs.6,000/ - and thereafter rent was increased to Rs.15,000/ - from June 2007 and it was further increased to Rs.26,250/ -. That initially the playground was given to one Keyur Bhatiya who formed Satellite Tennis Club and thereafter the HUF was formed and the plaintiff HUF was accepted as a tenant and the rent etc. was paid by the HUF from its bank account. It was alleged that thereafter the dispute started with respect to increase in the rent which was objected by the plaintiff and thereafter the defendant was threatening the plaintiff to dispossess him from the suit property and therefore, to protect the possession, the plaintiff had instituted the aforesaid suit. That in the said suit, the plaintiff took out Notice of Motion for interim injunction. It was contended on behalf of the plaintiff that the plaintiff is a tenant of the suit premises/ground and therefore, they cannot be dispossessed without following due procedure of law as they cannot be termed as trespasser. The interim injunction application/Notice of Motion was opposed by the defendant by filing the reply. It was the specific case on behalf of the defendant that as such there was no privity of contract between the plaintiff and the defendant. It was the case on behalf of the defendant that playground was given to Keyur Bhatiya in his individual capacity as a tennis coach, as a licensee and not as a lessee. It was also the specific case on behalf of the defendant that plaintiff was never in exclusive possession of the playground in question and was permitted to use the said playground as a tennis coach for limited hours between 6.30 to 10.30. It was specific case on behalf of the defendant that plaintiff was never accepted as a tenant. Therefore, it was the case on behalf of the defendant that as the said Keyur Bhatiya was only a licensee to use the playground for limited hours, it was requested to dismiss the interim injunction application / Notice of Motion. [2.1] That on appreciation of evidence and correspondence between the parties, the learned Judge, City Civil Court accepted the case on behalf of the defendant and by impugned order has dismissed the Notice of Motion and has refused to grant interim injunction as prayed for. Hence, the appellant original plaintiff has preferred the present Appeal From Order.
(3.) SHRI D.D. Vyas, learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that learned Judge has committed an error and/or illegality in not granting the injunction as prayed for. It is submitted that the Satellite Tennis Club which was being run by member of the joint Hindu family Keyur Bhatiya who is the lessee and the rent has been recovered from the original plaintiff HUF and which has been accepted by the defendant without raising any objection, thereby accepting the HUF as a tenant and therefore, the plaintiffs cannot be evicted and/or dispossessed without following due procedure of law. [3.1] It is further submitted that there were number of documentary evidences produced on record that the plaintiff HUF was the tenant of the disputed plot in question and that the rent has been accepted by them and therefore, subsequently it is not open for the defendant to dispute the tenancy rights of the plaintiff HUF. [3.2] It is further submitted that every month an amount of Rs.6,000/ - was paid to the defendant which has been stated to be maintenance charges though, infact, it was a rent since the plaintiff was the tenant. [3.3] It is further submitted by Shri Vyas, learned Senior Advocate that even subsequently the rent was increased to Rs.15,000/ - p.m. and thereafter to Rs.16,500/ - p.m. which was further increased upto Rs.18,750/ - p.m. which has been paid to the defendant regularly. It is further submitted that even thereafter the rent was increased to Rs.25,320/ - with retrospective effect from June 2009 and even the difference was also recovered from the plaintiff. It is further submitted that even the receipts have been issued by the defendant which have been produced on record and despite these voluminous record available, the learned Judge has refused to grant injunction which deserves to be quashed and set aside. [3.4] It is further submitted by Shri Vyas, learned Senior Advocate that even two rooms adjacent to the play ground which were being used by the plaintiff for tennis ground are in possession of the plaintiff and the goods lying are also belonging to them. Therefore, it can be said that they are in exclusive possession of the covered up portion alongwith rooms, toilets and passage for access from the entrance gate. [3.5] Shri Vyas, learned Senior Advocate appearing on behalf of the appellant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Rame Gowda (dead) by LRs. v. M. Varadappa Naidu (Dead) by LRs. and Anr., 2004 1 SCC 769as well as the decision in the case of Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, 2005 AIR(SC) 104in support of his submission that as the appellant is in "settled possession", they cannot be dispossessed without recourse to law. [3.6] It is further submitted by Shri Vyas, learned Senior Advocate that even if the case on behalf of the defendant that of a licensee is accepted in that case also, the license is irrevocable in view of Section 16(b) of the Easements Act inasmuch as the licensee acting upon the license has executed work of permanent character and incurred expenses in the execution. In support of his submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Ram Sarup Gupta (dead) by LRs. v. Bishun Narain Inter College and others, 1987 AIR(SC) 1242. By making above submissions and relying upon above decisions, it is requested to allow the present Appeal from Order and allow the Notice of Motion taken out by the appellant and grant interim injunction as prayed for. Appeal from Order is opposed by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the respondent original defendant. It is submitted that as such the original plaintiff appellant was never the tenant and/or licensee of the disputed plot in question. It is submitted that one Keyur Bhatiya approached the Shreyas Foundation, which is a public charitable trust in the year 2005, stating that he was interested in starting lawn tennis activity in the defendant foundation as an instructor and considering the same and alongwith other activities by the defendant Shreyas Foundation, the said Keyur Bhatiya was permitted to use the plot in question only for tennis coaching and that too for few hours in the morning and he was being charged maintenance charges. It is submitted that as such at the time when the offer from the said Keyur Bhatiya was accepted even the plaintiff HUF was not in existence at all. It is submitted that merely because subsequently the maintenance charges have been paid from the bank account of the plaintiff HUF, it cannot be said that the defendant has accepted the same as a licensee and/or tenant. Therefore, it is submitted that as such there is no privity between the plaintiff and the defendant and therefore, the suit at the instance of the plaintiff is not maintainable and the learned Judge has rightly refused to grant injunction. [4.1] It is submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the defendant that said Keyur Bhatiya was never in exclusive possession of the plot in question which was used for tennis coaching. It is submitted that initially the plot in question was permitted to be used by said Keyur Bhatiya for some hours in the morning and looking to the increase in number of students, he requested by written application to increase the timings which came to be accepted and was permitted to use the plot in question for tennis coaching for few hours more. It is further submitted that even subsequently Keyur Bhatiya by application dated 01.03.2008 requested on behalf of the Satellite Tennis Club which was run by him for certain facilities namely (1) water to be provided for tennis courts for 3 to 4 days in a week, (2) one room, (3) as the football enters the tennis courts, inspite of the net having been tied between tennis courts and football ground, appropriate arrangement be made so that football could not enter tennis courts, (4) to clean terrace of bathrooms. It is submitted that the request was again reiterated by the said Keyur Bhatiya. It is submitted that thereafter the request of Shri Keyur Bhatiya was accepted and the maintenance charge was increased. It is submitted that neither the said Keyur Bhatiya nor even the plaintiff are ever been accepted as a tenant and that there is no landlord tenant relationship between the plaintiff and defendant as alleged. [4.2] It is further submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the respondent defendant that it was Keyur Bhatiya alone who was the tennis coach, was permitted to use said ground to run tennis coaching classes between morning 6 to 10.30 and evening 4 to 7.30 and there is absolutely no relation between plaintiff HUF and defendant foundation. It is further submitted that license cannot be transferred by Keyur Bhatiya to the plaintiff HUF. Therefore, it is submitted that plaintiff has no cause of action to file the present suit. [4.3] It is further submitted by Shri Mihir Thakore, learned Senior Advocate that from the correspondences on record, it will be evident that no exclusive possession of the premises was given to Keyur Bhatiya and that he was only permitted to run coaching classes limited to tennis and that too for a limited period/hours in the morning and evening. It is further submitted that whenever any additional facilities is required, there was continuous interaction including for converting the clay courts to hard courts. It is submitted that if he was in exclusive possession, he would not be required to seek such permission. It is submitted that even for change of timings, he sought permission of defendant. It is submitted that if a document gives a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a license. It is further submitted that in determining whether the agreement creates a license, test of exclusive possession is significant. It is submitted that in the present case, the premises are part of large premises of the defendant which are enclosed by a wall and therefore, there is no question of any exclusive possession of even Keyur Bhatiya much less the plaintiff. Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the respondent original defendant has relied upon the decision of the Hon'ble Supreme Court in the case of Associated Hotels of India Ltd. v. R.N. Kapoor, 1959 AIR(SC) 1262; in the case of M.N. Clubwala v. Fida Hussain Saheb, 1965 AIR(SC) 610 and in the case of Sohanlal Narayandas v. Laxmidas Raghunath Kavith, 1971 1 SCC 276in support of his above submissions. [4.4] It is further submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original defendant that mere use of the word "rent" in some correspondences or otherwise does not imply that said Keyur Bhatiya was the tenant and not the licensee. In support of his above submissions, he has also relied upon the decision of the Hon'ble Supreme Court in the case of M.N. Clubwala and another decision of the Hon'ble Supreme Court in the case of Konchada Ramamurty Subudhi (dead) by his legal representatives v. Gopinath Naik and Ors., 1968 AIR(SC) 919(Para 11). [4.5] Shri Mihir Thakore, learned Senior Advocate has further submitted that the licensee cannot be considered to be in settled possession as he enters the premises as a permissive user and on license being terminated becomes trespasser inter -meddling with the property. In support of his above submissions, he has relied upon the decision of the Delhi High Court in the case of Chandulal v. Municipal Corporation of Delhi, 1978 AIR(Del) 174as well as in the case of Mahadev and Co. and Ors. v. Agriculture Produce Marketing Committee and Anr.,2007 2 ILR(Del) 1022as well as the decision of this Court in the case of Harshadkumar Sunderlal Dalai and Ors. v. Hasmukhben wd/o. Chimanlal Bhogilal Desai and Ors., 1983 GLH 774. [4.6] It is further submitted by Shri Mihir Thakore, learned Senior Advocate that even if said Keyur Bhatiya and/or the plaintiff is considered to be in settled possession, such person has no right of possession against the true owner. In support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors., 2004 3 SCC 137 and in the case of Rame Gowda (dead) By LRs. v. M. Varadappa Naidu (dead) by LRs. and Anr., 2004 1 SCC 769. [4.7] Now, so far as the submission on behalf of the plaintiff with respect to the irrevocable license under Section 16(b) of the Easements Act is concerned, Shri Thakore, learned Senior Advocate has submitted that it was never the case on behalf of the plaintiff before the learned trial Court that even if it is considered to be a license, it is an irrevocable license. It is submitted that plaintiff cannot be permitted to change his stand at a belated stage much less in Appeal from Order. It is submitted that having claimed the tenancy, the plaintiff cannot be permitted to claim irrevocable license under Section 16(b) of the Easements Act on the premise that he has executed the work of permanent character. In support of his above submissions, he has relied upon the decision of the Hon'ble Supreme Court in the case of Chevalier I.I. Iyyappan and Anr. v. The Dharmodayam Co., Trichur, 1966 AIR(SC) 1017. [4.8] It is further submitted by Shri Mihir Thakore, learned Senior Advocate that even otherwise the work alleged to have been done by the said Keyur Bhatiya cannot be said to be a work of permanent character under Section 16(b) of the Easements Act. In support of his above submission, he has relied upon the decision of this Court in the case of Jagannath Govind Shetty v. Jayantilal Purshottamdas Patel, 1980 AIR(Guj) 41. [4.9] It is submitted that as the defendant is not a legal entity, no suit is maintainable unless all the trustees are impleaded as defendants. [4.10] Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the respondent original defendant has submitted that in view of the above and when the plaintiff has failed to establish prima facie case and considering the fact that notice was given on 03.12.2010 that tennis facilities would not be available from April 2011 and the balance of convenience is also not in favour of the plaintiff, he has requested to dismiss the present Appeal from Order by submitting that no illegality has been committed by the learned trial Court. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Wander Ltd. v. Antox India P. Ltd., 1990 Supp1 SCC 727by submitting that the learned trial Court has exercised the discretion judiciously and the same is not required to be interfered by this Court in exercise of the appellate jurisdiction. Therefore, it is requested to dismiss the present appeal from order.;