1. This appeal is by the defendant who, on being sued for ejectment from the premises where he was living, pleaded the Calcutta House Rent Control Order in bar. The Courts below have refused this plea on two grounds : (1) that he is not a tenant at all but a mere licensee and (2) that assuming he is a tenant, he is a defaulter and therefore not entitled to the benefit of the Calcutta House Rent Control Order. A decree for ejectment has accordingly been passed and the defendant has appealed.
2. In opening the appeal, Mr. Gupta at first stated that in view of the second finding which was a finding of fact, his client could not claim, the protection of the House Rent Control Order and could not expect a reversal of the decree for ejectment. He would, therefore, confine himself to the first finding and if he succeeded in getting it reversed and establishing a tenancy, that might be useful to his client in pursuing his remedy under the Calcutta House Rent Control Order in some other form, in view of certain recent amendments. When, however, Mr. Gupta's attention was drawn to para. 9-A of the Order, he took a further point to the effect that the decree in the present case was bad, inasmuch as the permission of the Rent Controller had not been obtained.
3. The material facts are the following : It appears that the defendant's house at 2, Ashutosh Mukherji Road was requisitioned under the Defence of India Act and the requisitioning officer suggested that he might be provided with accommodation in the ground floor of the plaintiff's house at 84-B, Shambhunath Pandit Street, which was close by. The plaintiff agreed or was made to agree and an arrangement was concluded between the parties under which the defendant was to be accommodated in the plaintiff's house for a specified period of roughly six months. It must be added that the plaintiff himself is not the owner of the house, but only a tenant.
4. The terms of the arrangement are to be found in a letter, dated 11-7-1943, which the defendant addressed to the plaintiff and which the latter confirmed. In the course of his defence, the defendant alleged that this letter had been obtained from him by coercion and he even raised an issue on the point. Both the Courts below have disbelieved this allegation which was as unworthy as it was untrue. The relationship between the parties has therefore to be ascertained from the letter to which I have referred.
5. In that letter, the defendant first recites the circumstances in which he was going to occupy a portion of the plaintiff's house and states that the agreement was that he would be given 'temporary accommodation' from 14-7-1943 up to 31st December of the same year. The area of occupation would be the entire ground floor, minus the garage, with the proviso that he would occupy the kitchen and the dining room a week later, that is to say, on 21-7-1943.
6. Proceeding next to recite the terms of his occupation, the defendant states that he would pay a sum of Rs. 70 per month, inclusive of all taxes, as 'compensation for his occupation' and for each month he would pay on or before the 7th day of the next month. He would pay all electric charges for the ground floor for which there was a separate meter and would also pay one-third of the electric charges for the service pump. He puts it on record that he had paid the amount of a month's compensation by way of a deposit.
7. Next he proceeds to set out the terms of his actual use of the premises which require to be set out in full:
4. The control of the main entrance to the premises and of the collapsible gate to the staircase leading to the upper stories of the building will remain entirely with you and you will be entitled to unrestricted passage from the main entrance to the said staircase throughout 24 hours of the day and night. I shall not be entitled to lock at any time any of these gates.' '6. The house service pump and its switches at the ground floor shall be at your disposal at all times and you shall be entitled to passage to the pump and reservoir.' '7. All your servants shall at all times be entitled to the use of the servants bath room at the ground floor along with my servants etc.
8. Lastly, the letter recites that the defendant would vacate the premises before 31-12-1943 but would be entitled to vacate earlier. The plaintiff, however, would not be entitled to require him to vacate before 31-12-1943, if he himself remained in occupation. But if he himself vacated before that date and was unable to give vacant possession to his landlord by reason of the defendant's staying on, the latter would be bound to indemnify the plaintiff for all losses and damages suffered.
9. The Courts below have held that the careful avoidance of the words 'tenancy' and 'rent' and the use instead of the words 'temporary accommodation' and 'compensation' made it clear that no tenancy was intended to be created. Support is sought to be drawn for this view from the circumstance that the Calcutta House Rent Control Order had already come into operation and the unpleasant possibilities for land-lords under certain of its provisions had already become patent. It was therefore thought to be a reasonable inference that the plaintiff consented to admit the defendant to the occupation of his house only on condition that no status of tenancy was created and that the parties chose their language deliberately in order to represent their true intention of excluding the relation-ship of landlord and tenant.
10. Now, the border-line between a licence and a lease is often exceedingly thin and I shall certainly not stretch the terms of the agreement in the slightest degree for the purpose of finding a tenancy; but, in my view, the consideration relied upon by the Courts below cannot avail against the terms of the engagement and the rights thereby conferred on the defendant. I would not say that the intention of the parties is immaterial in all circumstances. Often, it may be solely a question of intention when the status has to be gathered merely from some ambiguous dealings; and if the terms are equally consistent with a licence and a lease, the intention of the parties may be a useful and a legitimate guide in determining the relationship actually created. But if, in the case of a written document, the rights actually transferred exceed those of a licence and make out a lease, it is quite impossible to reduce a lease to a licence by speculating as to what the lessor might really have intended. If he intended less, his acts exceeded his intention and by the consequences of his acts he must abide.
11. Coming now to the terms which I have to consider in the present case, I do not propose to attempt a definition of licence in abstract terms and apply that definition. As has so often been said, each case must be decided on its own facts and regard must be had to the substance of the agreement. A test, as good as any that can be found, is laid down in Halsbury's Laws of England in the following terms:
If the effect of the instrument is to give the holder the exclusive right of occupation of the land, though subject to certain reservations, or to a restriction of the purposes for which it may be used, it is a lease; if the contract is merely for the use of the property in a certain way and on certain terms, while it remains in the possession and control of the owner, it is a licence. (Halsbury's Laws of England, Hailsham Edition, Vol. 20, page 9.)
To this I would add the definition of licence as given in Section 52, Easements Act, which, however, so far as I am aware does not apply to Bengal. The definition is in the following terms:
Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
As to what 'interest in land' means, it has been explained in numerous cases that where the owner transfers the rights of ownership in a way which extinguishes their enjoyment by him and vests the enjoyment exclusively in the transferee, an interest in the land is granted; but where the owner retains the rights of ownership but only subjects them to restrictions to the extent that some of the rights are transferred to another, then what he grants is either a licence or an easement, but not an interest in land.
12. Here, the defendant pays a monthly sum to the plaintiff for his occupation of the premises, but that circumstance is not conclusive, because a licence may be for consideration. He was to vacate by 31-12-1943, but that, again, is not conclusive, for a licence may be for a term. He accepted the liability for taxes, but that too is not decisive, although it suggests a tenancy. But what, in my view, is decisive is the fact that he permits the plaintiff the use of a portion of the ground floor which can only be on the basis that the exclusive right of occupation of the ground floor has in the first instance vested in him and out of that right he is carving out a portion and making a re-grant thereof to the plaintiff. Obviously, in making the grant the' plaintiff was not merely granting an use, reserving to himself the rights of ownership and control; for had that been the case, he would be entitled to use the ground floor so far as it was not used by the defendant, in his own right and would not require a permission. Mr. Chakravarti, who appeared for the plaintiff, contended that the terms contained in Clauses 4, 6 and 7 of the agreement were inserted merely by way of: abundant caution and that what is said in them is only another way of saying that the defendants use of the servants' bath room and privy would not be exclusive, but would be joint with the servants of the plaintiff and that his us^ of the ground floor would not be such as to exclude the plaintiff's use of the gate and the staircase or his access to the pump. In my opinion, the words actually used do not bear this interpretation. It is clear to my mind that Clauses 1, 6 and 7 can be explained only on the basis that an exclusive right of occupation of the ground floor had vested in the defendant. Neither am I impressed by the argument accepted by the Courts below that the use of the words 'temporary accommodation' and 'compensation' were conclusive. If that were so, the House Rent Control Order would be at the mercy of words and anybody could avoid it by simply avoiding the words 'tenancy' and 'rent.'
13. In my view, on a proper interpretation of the agreement, the status granted in favour of the defendant was that of a tenant.
14. I do not consider it necessary to discuss in detail the cases cited at the Bar. Mr. Guptas referred to the Pull Bench decision in Secy. of State v. Karuna Kumar ('08) 35 Cal. 82 (F.B.) and the case in Secy. of State v. Bhupal Chandra 17 : AIR1930Cal739 . They explain the true nature of a licence with the assistance of other case law. Mr. Chakravartti referred to the case in Acting Secretary, Board of Revenue v. South Indian Railway Co., Ltd. 12 A.I.R. 1925 Mad. 434. Of this case it is enough to say that the reason why the grant was found to be a licence is manifest from the very first term of the agreement which shows that the grantee was only given the use of the land for a particular purpose.
15. The question next to be considered is whether, even if the defendant be a tenant, any defence under the House Rent Control Order is open to him in view of the fact that he is a defaulter. Mr. Gupta did not challenge the finding that a default had been committed, but he contended that the consequence of the default was not to debar the defendant altogether from taking any plea under the House Rent Control Order. While he was not entitled to plead para. 9 and contend that the plaintiff was not entitled to ejectment at all, he was nevertheless entitled to contend tinder Para. 9A that no decree could be made in the plaintiff's favour unless he obtained the permission of the Rent Controller to prosecute the suit. This contention is based on the fact that in Para. 3 of the plaint the plaintiff stated that he required the house for his own purposes.
16. Since I am not accepting this contention it is only fair to state that Mr. Gupta did not intend to urge it originally but merely took it up at a suggestion from me, although he ultimately argued that the point was a good point.
17. On further consideration, it seems to me that this contention would not be correct in the facts of the present case. It is undoubtedly one of the common errors as to para. 9(4) of the House Control Order to suppose that a defaulter is not entitled to any benefit under the Order at all. What the subparagraph actually provides is that the defaulter will not be entitled to claim the benefit of 'this paragraph', that is to say, Para. 9. The requirement as to the permission of the Rent Controller is contained not in Para. 9, but in Para. 9A which is independent of Para. 9. Paragraph 9(4), by itself, cannot therefore be a reason for excluding a tenant from taking up a plea under para. 9A.
18. But on the actual terms of Para. 9A(1), there is, it appears to me, a difference in position between suits instituted after the enactment of the paragraph and suits which were pending when the paragraph came into force. The paragraph reads thus:
9A(1). No suit or proceedings by a landlord against a tenant in possession of a house for eviction of such tenant therefrom in which any of the grounds specified in Clause (c) of the proviso to sub-para. (1) of para. 9 has been taken as a ground for such eviction shall be entertained by any Court, or where any such suit or proceeding by a landlord is pending in any Court on the twenty-second day of May 1944, no decree or order for the recovery of possession of the house in respect of which such suit or proceeding is pending shall be made by such Court on any of the grounds specified in the said Clause (c) unless the landlord has been permitted by the Controller by an order in writing under sub-para.(3) to institute such suit or proceeding or to prosecute the suit or proceeding so pending, as the case may be, and has produced before such Court proof that such permission has been granted.
This paragraph came into operation on 22-5-1944. The suit in the present case was brought on 25-2-1944 and the decree was passed on 16-7-1945. We are therefore concerned only with the part 2 of Para. 9A(1) which relates not to suits instituted after the promulgation of paragraph, but to the date of a decree or order in suits which were pending at the date when the paragraph came into force.
19. It has been seen from para. 9A(1), which I have just read, that it is concerned solely with those suits in which the grounds for eviction are those specified in proviso (c) to Clause (1) of Para. 9. The grounds specified in that clause are that the house is bona fide required by the landlord for his own use or the use of any person for whose benefit the house is held or that the landlord can show some cause which may be deemed-satisfactory by the Court. In view of the statement contained in the plaint, we are concerned here only with Part 1 of the proviso (c), namely, where the house is bona fide required by the landlord for his own use.
20. As I have had occasion to explain in another case arising out of the Bengal House Rent Control Order, the so-called grounds mentioned in the proviso to Clause (1) of Para. 9 are not grounds for eviction in the true sense of the term, but merely the reasons for which a Court may pass a decree for ejectment in spite of the House Rent Control Order. The scheme of Para. 9 appears to me to be this. The landlord has in the first instance to make out a ground for ejectment under the general law. When he had reached that stage, then, if the tenant has meanwhile pleaded the House Rent Control Order, a decree for ejectment shall not, in the absence of anything else, be passed, so long as the tenant pays the allowable rent. Then comes an exception to this exception and it is to the effect that in spite of the House Rent Control Order and in spite of the tenant not being a defaulter, a decree shall be passed, if one or other of the reasons set out in the three provisos to Clause (1) is found to exist. The so-called grounds or reasons mentioned in the provisos to Clause (1) of para. 9 are, therefore, merely exceptions to the defence which' the tenant may set up under the House Rent Control Order. It is clear that no recourse to the exceptions is necessary when no defence under Para. 9(1) of the Order is available to the tenant. An occasion for passing a decree on one or other of the grounds enumerated in the provisos can arise only when the tenant is entitled to take a plea under para. 9(1), House Rent Control Order, and has taken it and the Order requires to be overcome by the application, if possible, of the special considerations set out in the provisos.
21. Proceeding next to Para. 9A(1), the meaning of the part 1 is reasonably clear. If, after the promulgation of this paragraph, a suit for ejectment of the tenant is brought and the plaint contains a statement that the landlord requires the house for his own use, the suit shall not be entertained, unless proof of permission of the Rent Controller is produced. The language in this part of the paragraph is
in which any of the grounds specified in Clause (c) of the proviso to sub-para. (1) of Para. 9 has been taken as a ground for such eviction.
The only requisite, therefore, is the taking of a ground by the plaintiff, without more. The language in Part 2 of the paragraph, however, is noticeably different. There, all that is said is that
no decree or order for the recovery of possession...shall be made by such Court on any of the grounds specified in Clause (c) unless the landlord has been permitted by the Controller, etc.
The prohibition here is addressed to the making of the order or the decree and the decree or order which the Court is forbidden to pass without the permission of the Controller is a decree or order on one of the grounds specified in Clause (c) of the proviso to Para. 9. But, if the tenant is a defaulter, then a plea under para. 9 is not open to him at all by reason of the opening words of Clause (1) of that paragraph and also by reason of the more definite prohibition contained in Clause i. In such a case, there can be no occasion for having recourse to Clause (c) of the proviso and there will be no decree on the ground mentioned there. As explained already, where the tenant is a defaulter, para. 9(1), House Rent Control Order is not at all in the Court's way and the Court does not require to rely upon any of the special reasons or grounds, given in the proviso to para. 9(1), in order to be able to pass a decree for ejectment. It will simply pass a decree under the general law. If it does so, it will not, even where the landlord requires the house for his own use, pass a decree 'on any of the grounds specified in Clause (c) of the proviso to para. 9(1)' and it will not be passing a decree of the kind which para. 9A (1) forbids it to pass without proof of the Rent Controller's permission. In other words, the paragraph will not be attracted at all.
22. To put the matter briefly, Part II of para. 9-A(1) can have application only where the Court can pass a decree, if at all, by relying on Clause (c) of the proviso to para. 9, that is to say, by holding that the immunity from ejectment which the tenant has otherwise established under the House Rent Control Order, is, on the facts of the case, overborne by the personal needs of the landlord or some other satisfactory consideration. It cannot apply where, the tenant being a defaulter, he is excluded from the benefit of para. 9 and therefore a decree can be passed under the general law, without the support of the special reason provided for in Clause (c) of the proviso to that paragraph.
23. Mr. Gupta contended that although as a matter of language the result might be what I have indicated, as a matter of reason Parts I and II of para. 9-A(1) should be construed as bearing the same meaning. He contended that the intention of para. 9A(1) obviously was that so far as suits brought after its promulgation was concerned, they could not be entertained at all without the permission of the Rent Controller. It could not at the same time have meant that if there was a suit pending at the time the paragraph came into operation, then in such suit the Court might go on with the evidence and it would have to call for permission from the Rent Controller only after it had decided, if it so decided at all, that the House Rent Control Order was otherwise available to the tenant and, in order to exclude it, the landlord would require to rely upon the reasons given in Clause (c) of the proviso to Clause 9(1). The Court, as it were, would have to make mentally a compartmental decision in advance. Mr. Gupta contended that the same provision could not be interpreted as contemplating such different consequences in the case of suits yet to be instituted and1 pending suits. It would be more reasonable to hold that in both cases, before the Court could deal with the suit or deal with it further, permission of the Bent Controller would have to be obtained.
24. Giving my best consideration to this matter, I am not prepared to accept the contention of Mr. Gupta. The paragraph concerned is elaborately and carefully expressed and it is clear to my mind that the draftsman did intend to make a distinction between future suits and suits then pending. The substance of the matter is that before the Court could make a decree on any of the grounds specified in Clause (c) of the proviso to para. 9(1), it would have to see that the plaintiff had satisfied the Rent Controller that the reasons mentioned in that proviso existed. In the case of plaint filed after the promulgation of the paragraph concerned, it requires this preliminary step to be taken before the Court takes up the hearing of the suit. In the other ease, the suit having already proceeded to a certain extent, the paragraph does not require the plaintiff to go unnecessarily to the Rent Controller till it is found or till it appears that he would require the permission in order to obtain a decree. This may have been the reason for making a distinction or may not have been; but I am concerned only with the language in which the paragraph is expressed. The language, in my view, is unambiguous and does not admit of the interpretation which Mr. Gupta suggested, although on his interpretation the two parts of the paragraph might perhaps be more consistent in their requirements.
25. For the reasons above indicated, I am of opinion that the defendant having been found to be a defaulter, permission of the Rent Controller was not necessary in the present case which was pending when para. 9-A(1) came into operation.
26. I may add that even if I held that permission of the Rent Controller was necessary, I jam doubtful whether the consequence would be to reverse the decree of the lower Appellate Court to the extent of dismissing the plaintiff's suit. Paragraph 9-A(1) does not say that in the absence of permission from the Rent Controller, the suit shall be dismissed. It only says that no decree or order shall be made. One way of giving a meaning to these words is to take them as implying that after the hearing of the suit is concluded, the making of the decree shall be postponed till such time that the plaintiff is able to bring permission from the Rent Controller. It may be that such time will be indefinite. While at the Bar, I ventured to put forward such an implication of an indefinite pendency with respect to para. 9(1) of the Order in Babulall Choukhani v. Haripada Roy 31 : AIR1944Cal72 before Henderson J. and the interpretation was at least not rejected. But, however that may be, since in the present case both the Courts below found that the defendant was a licensee and I have found that he is a tenant, I would have given an opportunity to the plaintiff to obtain the permission of the Rent Controller now. In view of the finding on the second point, however, it is not necessary to pursue this matter further.
27. The result is that this appeal fails and is dismissed with costs. No order is necessary in the connected Rule. Leave to appeal under 01.15, Letters Patent, asked for by the plaintiff, is refused.