TaxTMI 
TaxTMI 
1988 (8) TMI 413
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....andigarh, granted a lease, under deed dated 25.11.1970, in favour M/s. S.Chokesiri & Co., respondent fierein. The lease was for a term-certain of 10 years from 1. 1.1971 under the terms and on conditions particularised in the Deed. Rent was initially Rs. 3,000 per month subject to certain increases stipulated in the lease-deed. Respondent carries on a business in clothing and textiles under the name and style ,Saree Sansar" in the demised premises. The principal ground-and the only ground that survives- on which eviction was sought was that the respondent had, in about the year 1973, unauthorisedly and without the consent of the appellants, inducted two sub-tenants in two portions of the premises who,there after, carried-on their respective businesses of their own in the respec- tive portions so sub- let. One was a tailor, a certain Banwari Lal, who carried on his business under the name and style "Royal Star Tailors" and the other. Agia Ram Lamba, Proprietor of M/S. Kwality Restaur- ant who established a business under the name and style ,,M/s. Kwality Ice Cream" in the portion sub-let. 3. The specific defence to this charge of sub-letting and the explanation for the admitted pr....
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....' charge of sub-letting; of Ram Lal Malhotra (A.W. 2.) and Inspector in the Enforcement Office who spoke to the notice stated to have been issued by the authorities in regard to the partitions effected in the premises to accommodate the Tailor and the Ice Cream Vendor; or Ravinder Pal Singh (A.W.4) A customer of the Ice Cream Parlour who spoke about the exclusiveness of its possession, of Nirmal Singh (A.W. 5) who gave a similar account respecting the tailoring establishment; of Davinder Singh (A.W. 7), the husband of the first appellant and father of the second. who spoke about the nature and extent of the alleged sub-letting and of the exclu- siveness of the possession of the sub-tenants of the portions in their respective occupation and certain other matters; and of Kul Rajinderlal (A.W. 8) who took photographs (Exhibits AW 8/1 to 4) which are stated to disclose that the Ice Cream Parlour was open late in the night even after the respondent's textile business had been closed. Mehtab Singh Gill, the second appellant, tendered- evidence as A. W. 9. Some documents were marked and relied upon in evidence on appellant's side. Respondent examined, amongst others, Rajinde....
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....ted the exclusive possession of the Kwality Ice Cream and that in the circumstances of the cases it was also legitimate to draw an inference, and raise a presumption, that monetary consideration alone had prompted the respondent into the transactions. Accordingly the learned Rent Controller by his order dated 2.3. 1979 allowed the appellants' application and made an order granting possession. 6. The appeal preferred by the respondent before the District Judge was unsuccessful and the order of eviction came to be upheld.The Appellate Authority also found that even in the case of M/s.Royal Star Tailors, there was a sub- letting. The Appellate Authority held: "So in the cases in hand, two exclusive portions have been parted with for M/s. Royal Star Tailors and for M/s. Kwality Ice Cream and the only conclusion in view of the evidence on record could be that the premises has been sublet and the documents Mark A and Mark B, could not be termed as licence deeds by any stretch of imagination Hence, so far as the finding on the ground of sub-letting is concerned, I do not find any reason to differ with learned Rent Controller and on this point I affirm the finding of the Rent Control....
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....aterial part of this report is that none of the above portion is approachable from inside the demised shop. If this report of the Local Commissioner would have been correct, there may be something to say in favour of the land-lords on the points of the conferment of exclusive possession of the portions to the third parties. There are, however, circumstances to show that this report is not factually correct." The High Court placed reliance on certain plans said to have been submitted for effecting certain alterations to the building which are stated to have contained the signature of the first appellant to come to the conclusion that, consistent with the structural dispensations indicated in the plans, the alleged sub-tenants could not have had exclusive possession. On this aspect, the High Court observed: "These plans were proved by M.L. Sharma, Senior Architect (RW. 3) who testified that they bear the signatures of Rajbir Kaur respondent-landlady. In fact, their correctness was also admitted by Devinder Singh, Mukhtiar and husband of Rajbir Kaur, andlady. These plans, according to learned counsel for the petitioner, indicate that after entering into the main gate of the shop one....
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....39; which is wider than that under Section 115 C.P.C. could be invoked to correct errors even in findings of facts and that, at all events, the finding of a question of sub-tenancy being a mixed questions of fact and law, this Court, even on an independent consideration of the whole matter, should not interfere as one of the essential ingredients in the concept of a sub-lease, viz., the existence of monetary-consideration, in the form 'Rent', as distinct from consideration by way of services was wholly lacking. Learned counsel, however, emphasized the correctness of the finding of the High Court on the lack of exclusive-possession, on which alone, according to the learned counsel the appeal should fail. 10 . Such controversy as exists in the case turns solely on whether the relationship between the Respondent on the one hand and " M/s.'Kwality Restaurant" and the "Royal Star Tailors" on the other, is one of sub-letting. Dr. Chitaley contends that the two transactions lack the normal and the usual indicia of tenancy and were no more than mere Personal privileges or personal-licence to occupy; and that no interest in the property was transferred. This case, indeed, pres....
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....arking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. (See: John Dewar; "Licences and Land Law". Modern Law Review Vol. 49 No. 6 Nov. 1986 and S. Moriorty "Licences and Land Law: Legal principles and public policies"1984 100 L.Q.R. 37) Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive -possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmustest to distinguish one from the other. The "solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties" (See Cobb v. Lane, [9521] 1 All E.R. 1198). In Merchant v. Charters, [1977] 3 All E.R.918 at (C.A.) Lord Denning MR referred to the tests for determining whether an occupier is a licensee or tenant thus: "Gathering the cases together What does it come to? What is the test to see whether the occupier of o....
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....ase from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in lease ......" In Dipak Banerjer v. Smr. Lilabati Chakrobory, 4 JT 1987 3 454 at 456 Sabyasachi Mukharji, J. observed: "But in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must in lieu of payment of some compensation or rent. However in regard to the second requirement of 'consideration'for the transfer of the right to enjoy the property, it was in that case held that though Section 105 of the Transfer of Property Act envisaged even 'services' rendered by the lessee as a consideration for the grant, however, under the Rent Acts, the position would be different. The proposition was noticed thus : "The question is, whether in the context of the provisions of Rent Act, services can be consideration for sub-tenancy. In other words whether in view of the provisions of the Rent Act services can be a good or any co....
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.... licencee and relies upon a deed entered into, inter-se, between himself and the alleged licencee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed. At best, it is a piece of evidence, the weight to be accorded to which will necessarily depend upon all the other circumstances of the case. The tenant and the sub-tenant, who jointly set up a plea of licence against the landlord may choose to camouflage the truth and substance of the transaction behind a facade of a self-serving and canveniently drafted instrument. The transaction, might be collusive and a mere mask the parties choose to wear to confuse and confound third parties. In such a case the realities and substance of the transaction and not merely the deed, become the basis for the determination of the legal nature of the relationship. The deed is a mere piece of evidence. In deciding whether a grant amounts to a lease or only a licence, regard must be had more to the substance than the form of the transaction. It is determined by the law and not by the label the parties choose to put on it. To give exclusive possession, there need not be express words to that effect;....
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.... partner of the respondent's firm, which, according to the Iearned counsel, amounts to an admission of the exclusiveness of his possession : "The Ice-Cream premises can be locked from outside independently." Sri Sanghi, quite understandly, placed strong reliance on the report of the Commissioner (A.W. 1) whose report substantiated the appellants' case. So far as the admissions attributed to Das Raj Jain (R.W. 10) is concerned, Dr. Chitaley would say that the statement of the witness that the premises could be looked from outside indepen- dently does not militate against or detract from the internal inter-connection between the main premises of "Saree Sansar'? and "Kwality Ice-Cream". But the report and evidence of the local Commissioner excluded any possibility of any such internal inter-connection. On an appreciation of the evidence the Iearned Rent- Controller came to hold: "Evidence of the petitioners clearly establishes that there is a separate cabin for selling ice cream which is under the control ice cream sellers. The licence deed is only a cloak to cover the real relationship of the respondent with M/s Kwality Restaurant, Sector 17E, Chandigarh. It is not be ....
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....ndum of appeal before the appellate Court or the 24 grounds raised in the revision application before the High Court, refer to this inference to be drawn from Ext. R.4. More importantly., even Das Raj Jain (R.W. 10) partner of the Respondent firm does not himself claim this import and significance for Ext. R. 4. No witness stated that the structural alterations were strictly in accordance with the plan, Ext. R. 4. Apparently, this was not also the aspect on which Respondent placed reliance before the Courts-below. Reliance on the plans to take away the effect of the positive evidence on record was not, therefore, justified. 16. The scope of the revisional jurisdiction depends on the language of the statute conferring the revisional jurisdiction. Revisional jurisdiction is only a part of the appellate jurisdiction and cannot be equated with that of a full-fledged appeal. Though the revisional power-depending kupon the language of the provision-might be wider than revisional power under Section 151 of the Code of Civil Procedure, yet, a revisional Court is not a second or first appeal. When the findings of fact recorded by the Courts-below are supportable on the evidence on record,....
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....t is not in a position to come to any satisfactory conclusion on the printed evidence; (III). The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court." But in cases where there is no question of credibility or reliability of any witness or the question is one of a proper inference to be drawn from proved facts, the appellate Court is-and should be generally in as good a position to evaluate the evidence as the trial Judge is. Lord Reid in Benmax v. Austin Motor Co. Ltd., [1955] 2 W.L.R. 418 at 422 observed: "But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought,of course. to give weight to his opinion." In the same case, Viscount Simonds indicat....
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.... witnesses puts appellate Judges in a permanent position of disadvantage against the trial Judge, and unless it can be shown that he has failed to use or has palpably misused his advantage-for example has failed to observe inconsistencies or indisputable fact or material probabilities (ibid. and Yuill 1945 P. 15: Watt v. Thomas, [19473 A.C 484)-the higher Court ought not take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities of the case..." (P. 855) ".... But while the Court of Appeal is always reluctant to reject a finding by a Judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it...." (P. 855) A consideration of this aspect would incomplete without a reference to the observations of B.K. Mukherjea J., in Sarju Pershad v. Jwaleshwari Pratap Narain Singh and Others, [1950] SCR 781 at 783 which as a succinct statement of the rule, can not indeed be bettered : "The question f....
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....Ranga Rao Bahadur Bobbili Samasthanam, AIR t934 Madras 548. But subsequent pronounce- ments of several High Courts, including the Madras High Court, have inclined to the better view that there might be circumstances which may necessitate and justify even an ex- parte order appointing a Commissioner. But the requirements of Rule 9 of Order 26 are construed to apply to a stage after the making of an order appointing the Commissioner. In the present case, it is no doubt true, that the order dated 3.2. 1975 of the trial court appointing a Commissioner did not in terms direct the parties to appear before the Commissioner. There is this infirmity in the proceedings of the Commissioner. But it is possible to construe the power to appoint a Commissioner to inspect the extant state and nature of structures as not confined to Rule 9 of Order 26 but referable to Rule 7 of Order 39 CPC where the court can dispense with prior notice, should it appear to the court that the very object of making of appointment of a Commissioner would be defeated and frustrated by the issue of prior notice. On the scope of Rule 8 of Order 39 as it stood even prior to its amendment, High Courts have held that an e....
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....h other. In the circumstances the pleadings would required to be construed liberally. In Rum Sarup Gupta v. Bishun Narain Inter College. AIR 1987 SC 1242 this Court said this of the need to construe pleadings liberally. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and find the proceeded or trial on those issues by producing evidence, in that event it would not be open to a parry to raise the question of absence of pleadings in appeal." (Emphasis Supplied) After all, the ,,parties do not have the foresight of prophets and their lawyers the draftmans....