C.S. No.99 of 1999

In the High Court at Calcutta

Ordinary Original Civil Jurisdiction

Before

The Hon'ble Mr Justice Jayanta Kumar Biswas

Bonus Watch Company Private Limited & Ors...........plaintiffs. Versus

Metro Marins & Anr.........................defendants.

Mr Surojit Nath Mitra, Mr Arindam Mukherjee and Mr Gauri Shankar Gupta, advocates, for the plaintiffs. Mr Abhrajit Mitra, Mr Jishnu Chowdhury, Mr Aniruddha Mitra and Mr M.M. Chandra, advocates, for the defendants.

Heard on: 4.7.2008, 23.7.2008, 18.8.2008, 19.8.2008, 21.8.2008, 25.8.2008, 15.9.2008, 18.9.2008, & 11.6.2009.

Judgment on: June 15, 2009.

Jayanta Kumar Biswas, J.- Bonus Watch Company Private Limited, the first plaintiff, is a closely held company of one Jugalkishore Sadani and the members of his family. The second plaintiff, Shanti Devi Sadani, and the third plaintiff, Navratan Sadani, Jugalkishore's wife and son respectively, are Bonus's directors. The suit was instituted on February 23, 1999 when the plaint was presented, and an order was made by the Master admitting the plaint and directing the defendants to file written statement. Metro Marins, the first defendant, is a firm, and the second defendant, Hiralal Jaisingh is a partner therein.

In the plaint the plaintiffs made the following prayers: - "a) Decree for khas possession of the fully furnished flat together with furnishings, electrical installations and other amenities, full particulars, whereof are set out in Schedule "A" hereto; b) Decree for Rs.34,008.25p. in favour of the plaintiff No.1; c) Interim interest and interest on judgment at the rate of 24% per annum; d) Decree for Rs.45,150.00 in favour of the plaintiff No.2; e) Interim interest and interest on judgment at the rate of 24% per annum; f) Decree for Rs.5,120.00 in favour of the plaintiff No.3; g) Interim interest and interest on judgment at the rate of 24% per annum; h) Decree for Rs.6,88,688.00 in favour of the plaintiffs as pleaded in paragraph 14 above; i) Interim interest and interest on judgment at the rate of 24% per annum; j) Decree for damages and/or mesne profit in favour of the plaintiffs No.1, 2 and 3 from the date of decree until delivery of possession; k) Alternatively enquiry into damages and a decree for such amount as may be found due upon such enquiry; l) Perpetual injunction restraining the defendants, their servants, agents and assigns from dealing with, disposing of, alienating or parting with possession of the said flat, full particulars whereof are set out in Schedule being annexure "A" hereto except in favour of the plaintiffs; m) Injunction; n) Receiver; o) Attachment before Judgment; p) Costs; and q) Further and other reliefs."

Case stated in the plaint, briefly, is this. Three agreements were executed on May 16, 1997 between (1) Bonus and Metro, (2) Shanti and Metro, and (3) Navratan and Metro. On the terms and conditions mentioned in the agreements (1) Bonus granted Metro licence to occupy the suit premises, flat no.4C measuring 1660 square feet of built up area on the fourth floor of the south block of the building called "SAKET" at premises no.2, Ho-Chi-Minh Sarani, Kolkata and servant quarters with car park on the ground floor of the building for the period from May 16, 1997 to April 15, 1998 for a licence fee of Rs.10,000 per month; (2) Shanti hired her fans (11 pieces), utensils (200 pieces), furniture (2 sofa-sets, 4 almirahs, 2 tables, 2 wardrobes), carpets (6 pieces), fridge big, etc. lying in the flat out to Metro for the licence period for Rs.15,000 per month; and (3) Navratan hired his five 1.5-ton air conditioners with fittings lying in the flat out to Metro also for the licence period for Rs.10,000 per month. Metro that was to use the flat for the purpose of running its office was liable to pay Bonus for electricity and maintenance. Being already in occupation under a previous licence that expired on May 15, 1997, it continued to occupy the flat. On expiration of the term on April 15, 1998 the licnece stood revoked, but it failed and neglected to make over possession of the flat, it continued to occupy it wrongfully. It did not pay Rs.25,000 licence fee, Rs.2,000 for electricity, and Rs.1,312.50 for maintenance. It did not pay Shanti and Navratan Rs.37,500 and Rs.5,000 hire charges respectively. For remaining in wrongful occupation of the flat, in terms of the agreement, it became liable to pay damages at the rate of Rs.2,000 per day from April 16, 1998. It also became liable to pay interest at the rate of 24% per annum for which notice was given. The sums of Rs.50,000 and Rs.1.5 lakh held by Bonus and Shanti respectively by way of security were to be refunded by them upon delivery of possession of the flat and other properties, and subject to payment of their dues. By a letter dated September 16, 1998 while admitting their liability to make over possession of the flat, the defendants wrongfully contended that the air conditioners had been taken away by the plaintiffs. Metro gave notice to quit, but failed to deliver possession of the flat in accordance with such notice. It failed to deliver possession of the flat even after agreeing in writing with Bonus to do so. The right to relief arose out of the same act or transaction or series of acts or transactions, and hence the plaintiffs can assert it jointly and severally, if they brought separate suits, common questions of law and fact would arise.

Case of the defendants stated in their written statement dated April 10, 2002 is as follows. From September, 1993 Metro was enjoying the flat as a monthly tenant. It was in uninterrupted exclusive possession, occupation and use of the flat. For perpetuating its right, title or interest in the flat as a monthly tenant, successive agreements, beginning with the one dated September 16, 1993, were executed by and between it and Bonus. Even though the agreements were described as leave and licence agreements, Bonus transferred to it an exclusive right of possession and created in its favour an interest in the flat. Originally rent was Rs.7,000 and subsequently it was increased to Rs.10,000. It was entitled to abatement of rent for the period electricity to the flat remained discontinued. Previously there were two agreements, one for leasing out the flat by Bonus, and the other for hiring out the furniture and fittings lying inside the flat by Shanti. It entered into a further agreement with Navratan on May 11, 1997 for hiring five air conditioners for the flat. No payment was made upon execution of the agreement for supply of air conditioners. Subsequently, on Navratan's assurance and representation that the air conditioners would be supplied immediately after restoration of electricity, it deposited Rs.1.05 lakh on March 17, 1998 and April 11, 1998. Though Bonus was obliged to maintain electricity, it failed to do so from October, 1997. Under the circumstances, it had to operate with the help of a generator costing around Rs.10,000 per month. Since electricity was off it never called upon Bonus to install the five air conditioners. In its lawyer's letter dated September 9, 1998 it was mentioned that furniture and fittings except seven ceiling fans and one exhaust fan were returned to Navratan, and further that Shanti did not supply any air conditioner. It paid Rs.30,000 on March 15, 1998 on the assurance and representation that electricity to the flat would be restored, but supply was restored only on February 23, 2002 just before the visit of the receiver of the flat appointed on February 15, 2002. The plaintiffs are not entitled to the amounts claimed or any part thereof or any amount at all. They are not entitled to any interest on any amount. It offered to surrender the flat and hand over vacant and peaceful possession thereof to Bonus against refund of the sum of Rs.2 lakh lying deposited with the plaintiffs strictly in consideration of the circumstances existing at the relevant point of time. For the purpose it sent its representative, Madhav Tasildar, to meet Jugalkishore on May 14, 1998. In the meeting Madhav offered to hand over possession of the flat to Bonus on or before June 15, 1998 against payment of the sum of Rs.2 lakh. A letter dated May 14, 1998 was written to Bonus in this connection. By letters dated June 17, 1998 and August 18, 1998 it reiterated its offer to hand over possession of the flat upon refund of Rs.2 lakh. The plaintiffs, however, failed and neglected to give reply to such letters, thus compelling it to forward the letters under cover of another letter dated August 20, 1998. By a letter dated September 3, 1998 Bonus rejected its offer. Hence letter dated September 16, 1998 was written by its lawyer once again offering to hand over possession of the flat against refund of the security deposit. This offer was not accepted either, as will appear from the plaintiffs' lawyer's letter dated September 25, 1998. It is not correct that it admitted its liability to make over possession of the flat. It offered to hand over possession against refund of security deposit, but such offer was rejected by the plaintiffs. In furtherance of offer it arranged accommodation at 1A, Ashutosh Mukherjee Road, and made over possession of the furniture, fittings, etc. But in view of the plaintiffs' conduct and refusal to accept the offer, it again started using the flat with fixture, furniture, fittings, etc. belonging to it. It is not correct that it gave notice to quit or had agreed in writing with the plaintiffs or with any one of them to deliver vacant possession of the flat. The suit is bad for misjoinder of parties and causes of action.

By an order dated August 27, 2007 the following eight issues were framed and recorded:- "i) Is the suit maintainable in its present form? ii) Is the defendant a monthly tenant with respect to suit flat under plaintiff no.1? iii) Is the plaintiff guilty of non-supply of electricity to the suit flat from October 1997 as alleged in para 4 of the written statement? iv) Are the defendants liable to make payment of any electricity and maintenance charges? v) Did the plaintiff install five air-conditioning units at the suit flat? vi) Did the plaintiff ever supply any furniture to the defendants and whether those were returned back to the plaintiff by the defendants? vii) Is the plaintiff entitled to the decrees as prayed for including the decree for damage? viii) To what other relief/reliefs, if any, is the plaintiff entitled?"

While the plaintiffs have examined Jugalkishore, as their sole witness, the defendants have examined Hiralal, the second defendant, and one Haradhan Jana, a former Metro employee, as their witnesses. The three agreements, all dated May 16, 1997, have been marked Exs A, B and C respectively.

The first issue is: "Is the suit maintainable in its present form?" Relying on the provisions of O.2, R.4 of the Code of Civil Procedure, 1908, Mr Abhrajit Mitra, counsel for the defendants, has pressed this issue contending that as to the claims of Shanti and Navratan the suit is not maintainable. It is not his argument that the suit, as to Bonus's claims, is not maintainable as well. I find that while the second, third and fourth issues are related to Bonus's claims, the fifth and sixth issues are related to Navratan and Shanti's claims respectively. Hence, I think it will be appropriate to deal with and answer the first issue after the second, third and fourth issues are dealt with answered.

The second issue is: "Is the defendant a monthly tenant with respect to suit flat under plaintiff no.1?" In other words, the issue is whether Metro came upon the suit flat by Bonus's licence. The issue has raised the question what relationship the transaction under Ex A did actually create. Is it licensor - licensee, as was mentioned in Ex A, or lessor - lessee, the parties actually intended to create? To show what is the position of law today on the question - when a transaction such as the one under Ex A creates a lease and when a licence, while Mr Abhrajit Mitra has relied on Halsbury's the Laws of England, (3rd ed., vol.23, p.29, para.1025); Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262; Qudrat Ullah v. Municipal Board, Bareilly, AIR 1974 SC 396; Capt. B.V. D'souza v. Antonio Fausto Fernandes, (1989) 3 SCC 574; Allahabad Bank v. Saday Chand Mahatab & Ors., 1999 (1) CHN 553; Achintya Kumar Saha v. Nanee Printers & Ors., (2004) 12 SCC 368; and C.M. Beena & Anr. v. P.N. Ramachandra Rao, AIR 2004 SC 2103; Mr Surojit Nath Mitra, counsel for the plaintiffs, has relied on Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, AIR 1988 SC 184; Swarn Singh v. Madan Singh, 1995 Supp (1) SCC 306; and Vayallakath Muhammedkutty v. Illikkal Moosakutty, (1996) 9 SCC

382.

In Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262, it was held (para.27) that the well established propositions are: (1) for ascertaining whether a document creates a licence or a lease the substance of the document must be preferred to the form; (2) the real test is the intention of the parties - whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. In Qudrat Ullah v. Municipal Board, Bareilly, AIR 1974 SC 396, while saying (para.7) that there is no simple litmus test to distinguish a lease from a licence, and that the character of the transaction turns on the operative intent of the parties, their Lordships said that the law on the point was stated in Associated Hotels. In Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, AIR 1988 SC 184, it was again said (para.12) that in determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. In Capt. B.V. D'souza v. Antonio Fausto Fernandes, (1989) 3 SCC 574, it was said (para.3) that it is firmly established that for ascertaining whether a document creates a licence or lease, the substance of the document must be preferred to the form; (para.5) that the test of exclusive possession, though relevant, is not conclusive, because the other tests, namely, intention of the parties, and whether the document creates any interest in the property, are also important considerations; and (para.5) that in view of the main purpose, namely, protecting the tenant from the exploitation of the landlord, of enacting rent statues, it is permissible for a party to a transaction described by the parties to it as a licence to contend that the transaction actually created a lease. In Swarn Singh v. Madan Singh, 1995 Supp (1) SCC 306, again (para.2) the real intention test was reiterated, and it was held (para.5): "Where the document is unambiguous, there is no need to travel beyond the document and look at the attendant circumstances together with the intention of the parties." In Vayallakath Muhammedkutty v. Illikkal Moosakutty, (1996) 9 SCC 382, it was held (para.9) that although, normally, in a case of licence question of subletting does not arise, simply for giving such clause in an agreement it cannot be held to be an agreement for lease; and that the substance of the document is to be considered for finding out the true import thereof, i.e. whether it creates a lease or a licence. In Achintya Kumar Saha v. Nanee Printers & Ors., (2004) 12 SCC 368, it was held (para.7) that in cases where courts are required to consider the nature of transactions and the status of parties thereto, one cannot go by mere nomenclatures such as licence, licensee, licensor, licence fee, etc.; that in order to ascertain the substance of the transaction, it is necessary to ascertain the purpose and the substance of the agreement; that in such cases intention of the parties is the deciding factor; and that in order to ascertain the intention, it is necessary to examine the attendant circumstances including the conduct of the parties. In C.M. Beena & Anr. v. P.N. Ramachandra Rao, AIR 2004 SC 2103, it was held (para.8) that though a deed of licence may have been executed, it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant; that generally speaking the difference between a lease and licence is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the attendant circumstances; and (para.9) that the conduct of the parties before and after creation of the relationship is of relevance for finding out their intention.

In my reading and understanding of the above-noted Supreme Court decisions cited to me, the position of law therefore is that for determining the question - when a transaction such as the one under Ex A creates a lease and when a licence, what is to be ascertained is with what real intention the parties entered into the transaction, and the real intention is to be ascertained from the agreement, if any, the attendant circumstances, and the conduct of the parties, prior and subsequent to the transaction. That this is the position of law today will appear clearly once it is seen wherefrom and how the intentions of the parties to the respective cases were ascertained by their Lordships. In Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262, the intention of the parties was ascertained from the agreement, described as a deed of licence. Under cl.8 of the agreement Kapoor was given the right to transfer his interest to any person, though with approval of Associated Hotels. It was held that this was destructive of any theory of licence. In Qudrat Ullah v. Municipal Board, Bareilly, AIR 1974 SC 396, once again the intention of the parties was ascertained from the two contracts containing clauses that, it was held, clearly indicated that the transaction was a lease. In Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, AIR 1988 SC 184, the intention of the parties to the agreement, described as a leave and licence agreement, was ascertained from the contents of the agreement. Noticing that it was provided in the agreement that Khalil Ahmed was permitted to use the premises for a maximum of twenty hours in a day, the Supreme Court held that it was a case of licence, not lease. In Capt. B.V. D'souza v. Antonio Fausto Fernandes, (1989) 3 SCC 574, the intention was ascertained from the contents of the leave and licence agreement and the attendant circumstances. Under cl.5 of the agreement D'souza was prohibited from subletting, underletting or parting with possession of the premises to any stranger, and considering this clause, the Supreme Court held that the question of executing a sublease or of subletting could arise only by a tenant; for induction of any person by a licensee in the property as his tenant, could not be described as subletting. Their Lordships also noticed that under cl.15 of the agreement provision was made for renewing the term of the licence. As to attendant circumstances, their Lordships noticed that the notice to vacate the premises was served on D'souza several years after expiration of the term of the agreement, and that it was not suggested on behalf of Antonio that there was any relationship between the parties, or that they were friends which induced him to allow D'souza to occupy the building. It was held that it was a case of lease, not licence. In Swarn Singh v. Madan Singh, 1995 Supp (1) SCC 306, the intention of the parties was ascertained from the document described as a licence, and it was held that though the document contained Swarn Singh's undertaking that he would not sublet the property to anybody, it was not a case of lease, since the document in no unambiguous term said that possession and control of the property would remain with the owner. In Vayallakath Muhammedkutty v. Illikkal Moosakutty, (1996) 9 SCC 382, besides considering the agreement containing a clause that Vayallakath would not be entitled to sublet the property, their Lordships noticed that he came with inconsistent cases in his initial and subsequent written statements; that he even denied that the lease was created by the agreement in question; that, on the contrary, he set up a case that even before execution of the agreement he had become a lessee by dint of an assignment from the erstwhile tenant that he attorned, and paid Illikkal rent when he got superior interest of the landlord; and noticing these facts their Lordships said (para.9): ".......If he had already been a tenant of the disputed premises from 1971 onward and he had attorned the tenancy in favour of the landlord there would not have been any occasion for executing the document Ext A-1." It was held that Vayallakath was a licensee, and not a lessee, as claimed by him. In Achintya Kumar Saha v. Nanee Printers & Ors.,(2004)12 SCC 368, for ascertaining the intention of the parties, in addition to considering the terms and conditions of the agreement, their Lordships considered the attendant circumstances and the conduct of the parties, and in the process noticed Achintya's conduct that he did not examine one Ajoy Kumar Bose from whom, in 1980, he purchased the suit property, possession whereof had been given to Nanee by Madhuri, Ajoy's mother, under a licence agreement dated July 5, 1976, to which Ajoy was held to have consented. It was held that it was a case of lease, not licence. In C.M. Beena & Anr. v. P.N. Ramachandra Rao, AIR 2004 SC 2103, for ascertaining the real intention of the parties, in addition to what was stated in the agreement, styled deed of licence, their Lordships, holding that Beena was actually a lessee, noticed that his possession of the premises dated from about twenty years at the 1981 deed of licence; that inspite of the deed, he continued to possess, use and enjoy the occupation of the premises as before; that though the so-called licence expired in 1982, Ramachandra did not insist on Beena putting him into possession, but allowed Beena to remain in occupation, and to continue to do so for about seven years at the institution of the suit.

The position of law being as noted hereinabove, for determining the question under the second issue in this suit, it is to be ascertained with what real intention Bonus and Metro entered into the transaction, and for the purpose it is to be seen what Ex A provided and what are the attendant circumstances and conduct of the parties. Relying on M/s. Mohan Sons (Bombay) Private Ltd. v. Lady Sonoo Jamsetji Jejeebhoy & Ors., AIR 1976 Bom 417, Kidar Nath v. Swami Parshad & Ors., AIR 1978 P & H 204, and Virji Lavji Makwana v. Rainbow Screen Shades & Ors., AIR 1979 Guj 178, Mr Abhrajit Mitra has submitted that for showing that it granted Metro only a licence, Bonus is required to prove the special circumstances that prompted it to grant a licence. His further argument is that intention to surrender after April 15, 1998 has nothing to do with the question whether the thing created by the transactions was a lease or a licence, because, for ascertaining this, conduct prior to April 15, 1998 is only relevant. I am unable to agree with him that the onus to prove that the transaction in question actually created a licence and not a lease was on Bonus, and that hence it was under an obligation to prove the special circumstances under which the decision to grant only a licence, and not to lease out the flat, was taken by it. It is the defendants who asserted that though Ex A described the transaction thereunder as a licence, and not a lease, in reality the parties to it intended to create a lease, not a licence. Hence the onus to prove the facts showing the actual intention of the parties is on the defendants. True it is that in the cases relied on the absence of special circumstances under which decision was taken to grant licence was noticed. But this does not mean that in law the plaintiffs, relying on the agreement describing the transaction thereunder as a licence, and not a lease, are under an obligation to give evidence in proof of some special circumstances under which the decision was taken to grant licence, and not to lease out the property in question. In my opinion, neither evidence of absence nor absence of evidence of any special circumstances is a decisive factor. Mr Mitra is wrong in saying that for ascertaining with what real intention Bonus and Metro entered into the transactions, Metro's intention to surrender expressed after April 15, 1998 is not relevant. Its post April 15, 1998 conduct is not only relevant, but may even be the decisive factor. This view is supported by the ratios of decisions in Achintya Kumar Saha v. Nanee Printers & Ors., (2004) 12 SCC 368; and C.M. Beena & Anr. v. P.N. Ramachandra Rao, AIR 2004 SC 2103. Here in Ex A, described as a licence agreement, Bonus has been described as the licensor and Metro has been described as the licensee. In the recitals it has been recorded that the word "licensee" shall be deemed to include the licensee's heirs, executors, administrators, legal representatives, successor in office and assigns; that the licensee approached the licensor and requested for grant of licence to use and occupy the flat temporarily. The operative part of the agreement contains seventeen clauses, providing: cl.1. - licence to occupy and use the flat for eleven months; cl.2. - licensee shall deliver vacant possession of the flat immediately on expiration of eleven months or earlier on getting suitable accommodation, failure to do so will make it liable to pay damages at the rate Rs.2000 per day; cl.3. - licensee shall pay fee of Rs.10,000 per month and deposit Rs.50,000 refundable without interest upon delivery of possession after deduction of dues, if any; cl.4. - licensor shall pay all rates, taxes, charges and other levies payable for the flat; cl.5. - licensee shall pay for generator, maintenance, electricity according to reading of meter installed in the flat; cl.6. - failure to pay under cl.5. shall give licensor right to disconnect electricity and recover all dues; cl.7. - the agreement shall never be construed as tenancy or lease, nor will it create any interest of the licensee in the flat, the flat will always remain in overall control of the licensor; cl.8. - the flat will be used for residence or carrying on business; cl.9. - licensee is not authorised to transfer the benefit to any third party; cl.10. - nothing in the agreement shall be deemed to be a grant of lease, licensee shall not be deemed to be in exclusive possession of the flat, licensor shall have right to inspect during working hours; cl.11. - licensee shall maintain the flat in good condition, shall not make any construction; cl.12. - licensee shall be liable to pay for damage; cl.13.- licence only for eleven months; cl.14. - licensee shall not cause nuisance, annoyance, etc.; cl.15. - in case of breach of any term licensor shall have right to terminate the agreement by giving fifteen days' notice; cl.16. - on expiration or determination of licence, licensee shall hand over vacant possession; cl.17. - the partner in the firm signing is the guarantor for due compliance with the terms of the agreement. Jugalkishore, PW.1, has testified, in cross-examination, (q.227) that prior to 1997 Metro was in possession of the flat on the basis of an agreement for eleven months; (q.265) that in 1993 when the flat was given to Metro temporarily for eleven months licence fee for the flat and furniture together was Rs.22,000, since there was no air conditioner; (q.267) that in 1993 the reasonable letting out value of the flat was Rs.25,000 approximately; (q.268) that Bonus had a leave and licence agreement with Metro for eleven months. Hiralal, DW.1, (q.197) a B.Com, L.L.B postgraduate, (qq.199-202) carrying on business under the firm name Metro Marins as Customs House Agent from 1980, (qq.250-251) running the business from a rented premises in Mirza Galib Street from 1979, and (qq.252-255) deciding early in 1993 to shift his office, needing a better accommodation, has testified, in examination-in-chief, (q.27) that though the 1993 agreement was to be for a long term creating a tenancy, at the signing thereof in Jugalkishore's lawyer's office, on his query, Jugalkishore stated that it was the normal agreement in normal way, and that it was actually for a long term; (qq.33,72-77) that after execution of the agreement dated September 16, 1993 for eleven months, agreements were executed on same terms formally every year. In his cross-examination he has said (qq.265-289) that his claim that the assurance given by Jugalkishore that the arrangement would be one for a long term will appear from the agreement concerned is not correct; that though he is a law graduate, he is not aware that the West Bengal Premises Tenancy Act, 1956 provides protection to a tenant against eviction; that in the course of pursuing his law studies he did not come across the provisions of the West Bengal Premises Tenancy Act, 1956; that in 1993 he did not know the provisions of the West Bengal Premises Tenancy Act, 1956; that he did not do his law after 1993; that prior to 1993 he was doing substantial business; that from 1988-89 M/s. T.C. Ray & Co. were advising him properly; that he used to consult them for any legal problem; that, though similar agreements were executed every year, occupation charge was changed only once; that he did not think it necessary to approach the court when Bonus wanted to increase the occupation charge; and that, on the contrary, he abided by the terms of the agreement. He has then said (q.465) that he signed all the agreements from 1993 after reading and understanding the contents thereof; and (q.473) that after entering upon the property in 1993, by the agreement dated May 16, 1997, Ex A, he agreed in writing to vacate the property on expiration of eleven months from the date of agreement.

As to what happened immediately before and after April 15, 1998 when the eleven-month tenure under Ex A expired, Jugalkishore, PW.1, has testified, in examination-in-chief (qq.38, 42) that before April 15, 1998 he had a talk with Hiralal who, on being told that the plaintiffs were not inclined to renew the licence, said that Metro would vacate the flat before April 15, 1998 and return all the furniture, fixtures and air conditioners; (q.43) that in terms of assurance given by Hiralal, the defendants did not vacate the flat or return the furniture, air conditioners, fittings, fixtures, etc; (q.44) that then the xerox of a letter dated August 20, 1998, Ex D, written by Metro to Bonus and Shanti was received by him; (q.48) that he was very surprised to receive a xerox of the letter; (qq.49-54) that a xerox of the letter dated August 20, 1998, in which reference was made to letters dated June 17, 1998 and August 18, 1998 that were never received by Bonus and Shanti, was received also by O.P. Sharma, the plaintiffs' solicitor and advocate; (q.55) that under the circumstances, on his instructions the plaintiffs' lawyer wrote the reply letter dated September 3, 1998, Ex E; (qq.87-94) that though in terms of Ex E on September 10, 1998 he was present at the premises for facilitating delivery of possession of the flat by Metro, Madhav, Metro's representative, present at the place, refused to hand over possession, and accordingly, Bonus, through its lawyer, wrote the letter dated September 12, 1998, Ex J; (qq.99-100) that by the letter dated September 16, 1998, Ex L, Metro's lawyer replied to Ex E; (q.97) that the plaintiffs' lawyer received another letter also dated September 16, 1998, Ex K, from Metro's lawyer; (qq.127-139) that by lawyer's letters dated September 25 & 26, 1998, Exs P & Q, Bonus again called upon Metro to fix date for delivery of possession of the suit properties; (qq.166-169) that through its lawyer Metro wrote the reply letter dated November 17, 1998, Ex V; (qq.170-174) that under the circumstances, through lawyer Bonus wrote a letter to Metro dated November 23, 1998, Ex X.

As to what happened immediately before and after April 15, 1998, DW.1, Hiralal, has testified, in examination-in-chief, (qq.47-49) that a letter dated May 14, 1998 (not tendered for admission in evidence and marking) was written by Metro for the purpose of surrendering the flat or requesting Bonus to take possession of the flat against refund of deposit money; (qq.50-55, 178-193) that Metro wrote Bonus the letters dated June 17, 1998, August 8, 1998 and August 20, 1998, Ex 5, regarding delivery of possession of the flat, but two envelopes containing the letters came back with the remarks "N.F." and "not known"; (q.56) that there was no meeting between the parties concerning surrender of the tenancy; (qq.57-62) that though Metro was willing to surrender the tenancy on refund of deposit and a date was fixed for the purpose towards the end of May or in June, 1998, and the defendants were available to give possession, nobody turned up to take possession; (q.63) that in 1998 Metro would have relinquished the tenancy, if the security deposit was refunded; (qq.64-65) that as the defendants had already made arrangements at 1A, Ashutosh Mukherjee Road, they shifted to that accommodation, though they did not obtain refund of security deposit; and that they shifted back to the suit flat in February, 2007. In his cross-examination DW.1 has said (q.240) that he started looking for a new accommodation in November-December, 1997; (q.339) that the letter dated May 14, 1998 was not sent via registered post nor was it sought to be delivered by hand; (q.341) that over the phone he informed Jugalkihsore his willingness to surrender the flat. Question 342 and the answer thereto are: "There was no meeting between Mr Sadani on the one hand and either yourself or your partner or any other representative of yours on the other/? There were meetings between myself and Mr. Sadani. Those were sometimes in the month of January- February, 1998 when I had indicated to him that I am willing to vacate the flat because of no electric supply and other difficulties." Then he has said (q.343) that in none of his letters he said anything about the meetings held with Jugalkishore; (q.347) that the agreement, Ex A, provided that the security deposit would be refunded upon handing over peaceful vacant possession of the flat; (q.387) that in around April-May, 1998 the defendants shifted to 1A, Asutosh Mukherjee Road accommodation; (qq.411-422) that reduction in cost of rent was the reason to shift to the Poddar Point around 1300 sq. ft. accommodation from the 1000 sq. ft. super built up area in the Asutosh Mukherjee Road accommodation, though rent for both was Rs.20,000. DW.2, Haradhan, has testified (qq.2-3) that he joined Metro in July, 1988 and left it in April, 2005; (qq.10-12) that in May - June, 1998 Metro shifted its office to 1A, Ashutosh Mukherjee Road from where, after 2001, it shifted its office to Poddar Point at 113, Park Street; (q.16) that in around October, 1997 there was problem of electricity in the suit premises; (q.19) that when the office was shifted to 1A, Ashutosh Mukherjee Road two air conditioners were purchased and one of the old air conditioners was installed by Hiralal in his residence and the other by Madhav in his residence; (q.20) that when Metro shifted its office to 1A, Ashutosh Mukherjee Road, tables, chairs belonging to Jugalkishore were handed over to him. In his cross-examination he has said (q.66) that he did not see the act of handing over of furniture to Jugalkishore and he has no document to that effect as well.

In its letter to Bonus dated June 17, 1998, Ex 5, Metro stated that licence granted to it to use and occupy the flat with fixtures, fittings, and electrical gadgets, originally for eleven months, was renewed from time to time; that by the final renewal the term was extended upto June 15, 1998; that its previous undated letter offering delivery of possession should be treated as dated May 14, 1998; that in discharge of its obligation to deliver possession on or before June 15, 1998 Madhav met Jugalkishore on May 14, 1998 and requested him to take possession on June 1, 1998; that in spite of request from Hiralal over the phone no step was taken for taking possession, though as agreed the licence was to terminate on June 15, 1998; that Jugalkishore, a resident in a part of the premises, failed to co-operate with Metro "in fully and effectually implementing the terms of this licence by receiving peaceful and vacant possession of the flat in question when tendered"; that Metro having shifted to its new accommodation, the flat was lying vacant from June 15, 1998; that for keeping and maintaining security persons Metro was incurring financial liability; and that Bonus would be liable for damages at the rate of Rs.500 per diem, unless it took possession and refunded the deposit within 24 hours. The letter dated August 8, 1998, Ex 5, was written by Metro only for forwarding a copy of the letter dated June 17, 1998, making the comment that it had not heard anything from Bonus. In its letter dated August 20, 1998, Ex D and also Ex 5, Metro, while expressing its surprise that it did not receive Bonus's reply to its letter dated June 17, 1998 and reminder letter dated August 8, 1998, stated that for not facilitating delivery of possession of the flat Bonus would be held responsible and liable to pay interest and damages as previously mentioned by it. By its letter dated September 3, 1998, Ex E, Bonus informed Metro that only a xerox of Metro's letter dated August 20, 1998 was received by it; that Metro's entire conduct was apparently very suspicious; that the letters dated June 17, 1998 and August 8, 1998 referred to in the xerox of the letter dated August 20, 1998 were never received by Bonus; that on September 10, 1998 Bonus's representative would be present at the premises for facilitating delivery of possession; and that since possession was not delivered on expiration of licence on April 15, 1998 Metro would be liable to pay damages at the rate of Rs.2,000 per day from April 16, 1998. In its letter dated September 12, 1998, Ex J, written to Metro, Bonus stated that though on September 10, 1998 Jugalkishore was present at the premises to facilitate delivery of possession, Madhav, though was present there, refused to hand over possession for undisclosed reasons. In its letter dated September 16, 1998, Ex K, written to Bonus, Metro once again stated that licence initially granted for eleven months, ending April 15, 1998, was subsequently extended by mutual consent upto June 15, 1998; that though Metro expressed its "intention, readiness and willingness to hand over khas vacant possession of the licensed flat", for Bonus's acts and omissions possession could not be handed over; and that from June 15, 1998, because of holding over, it was maintaining and securing the flat as a tenant.

I do not think anything said in Ex A can be said to be so unambiguous that it is not necessary to consider any other thing for ascertaining with what real intention Bonus and Metro entered into the transaction. In the absence of anything showing that they actually intended to create a licence, the recitals of the agreement recording that the word "licensee" shall be deemed to include the licensee's heirs, executors, administrators, legal representatives, successor in office and assigns could have been of some real significance. The terms and conditions of the agreement and the evidence of the witnesses considered with Exs 3 and 4A, bank statements and telephone bills respectively, clearly show that Metro was given exclusive possession of the suit flat, and that it had full control over it. Possession and control can be considered decisive factors to support a conclusion that the transaction created a lease, not a licence, only if the attendant circumstances and conduct of the parties do not show overwhelmingly that the parties actually intended to create a licence, not a lease.

The attendant circumstances are these. Metro has been carrying on business as Customs House Agent from 1979. Previously it was running its business from a rented premises in Mirza Galib Street. Hiralal, a partner in the firm, the second defendant and DW.1, is a B.Com., L.L.B. postgraduate. With the growth in business Metro felt the need for a larger accommodation. From 1988-89 it was being properly advised by T.C. Ray & Co., attorneys and advocates. After searching accommodation for around seven months, through broker engaged for the purpose, in September, 1993 it took the suit flat on the terms and conditions mentioned in an agreement styled leave and licence agreement. It took the accommodation with furniture, fittings and electrical gadgets lying therein. The flats in the premises where the suit flat is located are used both for residential and commercial purposes. After the 1993 agreement which was for a tenure of eleven months, the parties went on executing similar eleven-month tenure agreements, Ex A was the last agreement. These circumstances are bound to raise one question - if Metro intended to enter into the 1993 transaction actually for leasing the suit flat, then why it went on executing one after another eleven-month tenure agreements? It gave an explanation in its written statement. It has said that though the 1993 transaction created a lease, the subsequent agreements were executed for perpetuating its right, title or interest in the suit flat. This case stated by it in the written statement was not put to PW.1, DW.1 has not given any evidence either in proof thereof. As a matter of fact, by not taking any steps to prove this case the defendants abandoned it.

The parties conducted themselves as follows. From September 16, 1993 when the first eleven-month tenure agreement was executed till April 15, 1998 when the tenure of Ex A expired, the defendants did not assert in any manner whatsoever that the transactions between the parties created a lease and not a licence. A whisper of tenancy was raised for the first time in the letter dated September 16, 1998, Ex K, written by T.C. Ray & Co. for Metro to Bonus's lawyer. It was claimed in the letter that the licence period mentioned in Ex A was mutually extended upto June 15, 1998, and that on expiration of the extended tenure and in view of the effect of holding over, a tenancy with respect to the suit flat was created in Metro's favour. From the oral and documentary evidence it is proved that till before the letter dated September 16, 1998, Ex K, was written, Metro had never asserted in any manner whatsoever that the transactions between the parties created a lease and not a licence. On the contrary, in its letter dated June 17, 1998, Ex 5 it had clearly stated that the transaction between the parties under Ex A created only a licence; and that in the discharge of its obligation under Ex A to hand over possession of the flat Madhav, its representative, was present in the suit premises on May 14, 1998. In this letter it recorded its first independent view of the relationship created by the parties. Things stated in the letter completely destroy its subsequent case that by the several transactions the parties to Ex A actually created a lease, not a licence. There is absolutely no evidence in proof of its case that the eleven-month tenure mentioned in Ex A was mutually extended till June 15, 1998. Madhav stated to have sought and obtained the extension has not been examined. The case was not put to PW.1 as well. It is evident that the parties did not agree to continue the relationship after April 15, 1998.

The defendants' conduct is totally inconsistent with the ordinary conduct of a tenant. A person entering into a transaction creating a lease will assert his right as a lessee the moment he is told that the transaction actually created a licence and not a lease. Here on expiration of the eleven-month tenure of the 1993 agreement, instead of asserting its right as a lessee, Metro rather conducted itself as a licensee. It entered into successive fresh eleven-month tenure agreements. DW.1, Hiralal who played the principal role on behalf of Metro is not a layman. He was a law graduate even in September, 1993. The attorneys and advocates who wrote the letter dated September 16, 1998, Ex K, were advising him from 1988-89. Hence his testimony that on his query Jugalkishore told him that the agreement was a normal one actually creating a lease is not believable. It is idle to suggest that a person like him was an easy prey out there to be exploited by Jugalkishore. On the evidence, I think, it is rather reasonable to conclude that he was quite capable of pretending to be gullible at the time of entering into the transaction, the agreement concerned stating it to create a licence and not a lease, and then of turning around, which is permissible in law in such cases, and claiming that it actually created a lease. Metro did not make out a case of lease created by any transaction, even in the letter dated September 16, 1998, Ex K, wherein it claimed that in view of the effect of holding over, on expiration of the extended tenure of the liecence on June 15, 1998, it became a tenant. The elements of renewal of a tenancy within the meaning of s.116 of the Transfer of Property Act, 1882 were nowhere there. Hiralal has said that in April- May, 1998 Metro shifted its office to 1A, Asutosh Mukherjee Road. Ex 2 shows that even in February 2004 it was in this accommodation. It then shifted to a new accommodation at 113, Park Street. From this accommodation it came back to the suit flat in February, 2007, presumably to avoid huge financial liability accruing under Ex A. Long before April 15, 1998 the defendants arranged necessary accommodation for shifting from the suit flat. They stated in the written statement that the decision to deliver possession of the suit flat was taken because of the problems they were facing concerning electricity to the flat from October, 1997. Thus the subject of the third issue has become relevant also to the subject of the second issue.

The third issue is: "Is the plaintiff guilty of non-supply of electricity to the suit flat from October 1997 as alleged in para 4 of the written statement?" The defendants' case is that there was a complete failure on Bonus's part to maintain electricity to the suit flat from October, 1997; that in spite of repeated demands and requests it did nothing about it; and that, under the circumstances, Metro was compelled to operate with the help of a generator costing around Rs.10,000 per month.

As to the third issue, Jugalkishore, PW.1, has said, in his examination-in- chief, (qq. 203-206) that the allegation made by the defendants is totally untrue; that the plaintiffs never stopped electricity to the suit flat; that the defendants never made any request or demand to Bonus for electricity to the suit flat; and that it is totally untrue that Metro was compelled to operate with the help of a generator. In his cross-examination he has said (qq.256-257) that at the relevant time the entire building was under the supervision of two receivers appointed by this court in a suit instituted in 1991; and that electricity was not in his hand; (q.327) that no one ever informed him that the defendants installed any generator in the suit flat; and that other than the high tension supply line, there was a 75 KV generator installed in the building; (q.334) that it is totally untrue that by his unauthorized acts of disconnection he did not permit the defendants to enjoy electricity for a long period; (q.335) that it is totally untrue that from October, 1997 no electricity was available to the suit flat; and (qq.336,372) that it is totally untrue that for want of electricity to the suit flat from October, 1997 the defendants were compelled to shift their office to other premises; and that in fact there was uninterrupted electricity to the flat through high and low tension lines and heavy generator. On the other hand, in proof of the case stated in para.4 of the written statement, Hiralal, DW.1, in his examination-in-chief, has said (qq.39-44) that it was not known to him precisely for what reason electricity was not provided to the suit flat from October, 1997; that for office functioning, from October, 1997, Metro had to use a generator costing it around Rs.11,000 per month; (qq.79-80) that there was no electricity to the suit flat in 1998 and 1999; (qq.135-139) that he did not see Jugalkishore disconnecting electricity to the suit flat, nor did he ever ask Jugalkishore why there was no electricity to the flat. In his cross-examination, DW.1, has said (qq.294-305) that alleging want of electricity he did not write any letter to the plaintiffs or to the receivers, nor did he approach any court or the rent controller or his solicitors; (qq.306-307) that from 1993 there was a generator in the building, but it is not known to him whether it was big enough to cater to the requirements of all the occupants; (qq.312-313) that he has no document in support of his case that from October, 1997 Metro had to use its own generator; (q.316) that he has no document that will show that Metro decided to vacate the suit flat for want of electricity; (q.326) that the documents, Ex 5, will not show that in 1998, Metro wanted to vacate the suit flat because there was no electricity; (q.342) that in the meetings he held with Jugalkishore in January-February,1998 he indicated that he was willing to vacate the flat for want of electricity and other difficulties. On the third issue, DW.2, Haradhan, in his examination-in-chief, has said (q.16) that in October, 1997 CESC disconnected electricity to the suit flat for default in payment of dues; that in November, 1997 supply was restored; that after sometime it was again disconnected; that since the problem was continuing, sometime in May- June, 1998 Metro shifted its office to 1A, Asutosh Mukherjee Raod. In his cross- examination he has said (qq.55-63) that by making personal enquiry he came to learn that CESC disconnected supply in October, 1997; that it was not known to him whether Metro wrote any letter stating the problem to the joint receivers of the building; that he did not make any attempt to ascertain whether all flats were getting electricity from the common generator installed in the building.

The question therefore is whether the defendants have proved their case that for the plaintiffs they did not get electricity to the suit flat from October, 1997. From the evidence it is clear that the plaintiffs did not disconnect electricity to the suit flat at any point of time. The defendants have not produced any documentary evidence in proof of their case that since, from October, 1997, there was no electricity to the suit flat, they were compelled to use their own generator. DW.s 1 and 2 have admitted that there was a generator installed in the building. At the relevant time the whole building including the suit flat was under the supervision of two receivers appointed by court in 1991. Admittedly, the defendants did not write a single letter to the plaintiffs or to the receivers stating that from October, 1997 they were facing problems concerning electricity to the flat. They did not approach any court of law as well. It is simply unbelievable that, if really Bonus was responsible for their electricity problem; then they would have remained totally silent, and decided, on the contrary, to pay, as stated in the written statement Rs.30,000 on March 15, 1998 on the alleged assurance and representation that electricity would be restored to the flat; and Rs.1.05 lakh hire charges for five air conditioners on March 17, 1998 and April 11, 1998. If the plaintiffs were really creating a problem and the problem compelled the defendants to decide to shift to a new accommodation, already arranged, it is difficult to believe that they would have paid these amounts. As stated by Hiralal, DW.1, the defendants started looking for new accommodation in November-December, 1997 and shifted to their new accommodation at 1A, Asutosh Mukherjee Road in around April-May, 1998. On these facts, proved by the evidence of the witnesses, I find no reason to believe the case that for Bonus's any wrong there was no electricity to the suit flat from October, 1997. The defendants have failed to prove that there was no electricity to the suit flat from October, 1997.

I, therefore, answer both the second and third issues in the negative, and hold that the transactions between the parties created only a licence, not a lease; and that concerning electricity to the flat the plaintiffs never committed any wrong.

The fourth issue is: "Are the defendants liable to make payment of any electricity and maintenance charges?" Bonus's case is that until the date of revocation of licence Metro was liable to pay Rs.2,000 for electricity and Rs.1,312.50 for maintenance. The case of the defendants is that they are not liable to pay the amounts or any part thereof. In proof of the case Jugalkishore, PW.1, has said in his examination-in-chief (q.184) that Metro failed to pay Rs.2,000 for electricity and Rs.1,325 for maintenance. In his cross-examination he has said (qq.239-242, 306,324) that for electricity Metro did not pay Rs.2,000; (q.391) that no bill for maintenance was raised on the joint receivers. On the issue DW.1, Hiralal, in his examination-in-chief has said (qq.133-134) that the receiver of the building used to raise bills for electricity and maintenance. Clause 5 of Ex A, the agreement, provided that Metro would pay for both electricity and maintenance. In proof of the case that at the expiration of the tenure of the licence Metro was liable to pay Rs.2000 and 1312.50 for electricity and maintenance respectively, PW.1 has given evidence that the amounts were not paid by Metro that was liable to pay them. It has not been put to him that the amounts were not payable by Metro. Regarding Rs.2000, in cross-examination, he has only been asked to tell when the amount fell due, as to Rs.1312.50, he has not been asked anything at all. His evidence has virtually remained unchallenged. It has only been suggested to him (q.391) that the defendants paid the joint receivers for maintenance, his answer is, "No maintenance bills have been raised on the Joint Receivers."

I am, therefore, of the view that evidence of the witnesses proves that on April 15, 1998 the defendants were liable to pay Bouns Rs.2000 for electricity and Rs.1312.50 for maintenance. The fourth issue is, accordingly, answered in the affirmative.

Before the fifth and sixth issues are taken up for consideration it is necessary to answer the first issue, a brief reference to which has been made hereinbefore. The first issue is: "Is the suit maintainable in its present form?" Relying on the provisions of O.2, R.4 of the Code of Civil Procedure, 1908, Mr Abhrajit Mitra has argued the issue as follows. Shanti and Navratan executing separate agreements with Metro for hiring out their furniture, fixtures, etc., and five air conditioners respectively, having, if at all, independent causes of action could not unite them in Bonus's suit; and, in any case, their causes of action could not be joined with Bonus's suit for recovery of immovable property without the leave of the court. The bar in O.2, R.4 is a total bar, and hence the suit, in so far as Shanti and Navratan are concerned, is liable to be dismissed, because the provisions of O.2, R.7 apply only to a case of misjoinder of causes of action, not to a case where a cause of action is joined in contravention of O.2, R.4. In support of his contentions he has relied on Shankarlal Laxminarayan Rathi & Ors. v. Gangabisen Maniklal Sikchi & Anr., AIR 1972 Bom 326 (FB).

Mr Surojit Nath Mitra has argued as follows. Since all the claims in which the reliefs have been sought are based on only one cause of action, there was no need to obtain any leave under O.2, R.4. Right to relief in respect of and also arising out of the same series of transactions exists in the plaintiffs who at once granted the defendants licence to occupy the suit flat and use it with the furniture, fixtures, etc., and the five air conditioners hired out to them; and if they brought separate suits, common questions of law and fact would arise. Even if it is held that Shanti and Navratan had separate causes of action, which could be joined with Bonus's suit for recovery of immovable property only with the leave of the court, the suit, in so far as they are concerned, is not be dismissed merely for not taking the leave under O.2, R.4, because, if necessary, the leave can be granted by the court even now. The joinder, if bad at all, is bad for misjoinder, and hence, in view of the delay and the provisions of O.2, R.7, the defendants' objection should be deemed to have been waived. In support of his arguments he has relied on Chowdhry Ganesh Dutt & Ors. v. Musst. Jewach Thakoorain, (1903) 8 CWN 146; Satish Chandra Mullick v. Ashruffudin Ahmad & Ors., (1908) 8 CLJ 196; Chhabil Das v. Massu & Anr., AIR 1914 Lah 121; Shiba Prasad Singh v. Rani Prayag Kumari Debi & Ors., AIR 1932 PC 216; Bhagwandas Vrijbhukandas Shariff & Ors. v. Naran Kanji & Ors., AIR 1932 Bom 595; and New Mofussil Co. Ltd. & Anr. v. Shankerlal Narayandas Mundade, AIR 1941 Bom

247.

The decision in Shankarlal Laxminarayan Rathi & Ors. v. Gangabisen Maniklal Sikchi & Anr., AIR 1972 Bom 326 (FB), does not help the case of the defendants. There the question was whether, in view of the provisions of O.2,R.2 and O.2,R.4 of the Code, the suit was maintainable. It was held that claims for damages and claims for mesne profits, though were two causes of action separate from the cause of action for recovery of immovable property, in view of the provisions of O.2,R.4, could be joined together in the same suit. In Chowdhry Ganesh Dutt & Ors. v. Musst. Jewach Thakoorain, (1903) 8 CWN 146, the cause of action arose in the refusal of the defendants to recognize the plaintiff's right to succeed to her deceased husband's share in the family property, and the Privy Council, observing that it would be a denial of justice to hold that in a suit upon such a cause of action relief could not be given with respect to movable as well as immovable property, held that there can be nothing irregular in seeking to recover in one suit immovable and movable property, if the cause of action is the same in respect of both. In Satish Chandra Mullick v. Ashruffudin Ahmad & Ors., (1908) 8 CLJ 196, the relief claimed by the plaintiff was both recovery of immovable property and a declaration of title, and it was held by a single bench of this court that the defendant, not taking the objection until trial that the causes of action had been joined without the leave of the court, should be deemed to have waived her right to do so. In Chhabil Das v. Massu & Anr., AIR 1914 Lah 121, it was opined that cl.(c) of R.4 of O.2 of the Code was inserted in order to avoid the possibility of mistake and to make it perfectly clear that there is nothing irregular in seeking to recover in one suit immovable and movable property, if the cause of action is the same in both. In Shiba Prasad Singh v. Rani Prayag Kumari Debi & Ors., AIR 1932 PC 216, observing that the cause of action in respect of the rents, royalties and other items was the same as that in respect of the immovable properties, namely wrongful withholding of possession by the defendant, and hence the case fell under cl.(c) of R.4 of O.2 of the Code, the Privy Council turned down the defendant's contention that without the leave of the court the plaintiffs could not join any cause of action in respect of the rents, royalties and other moneys with the suit for recovery of immovable property. In Bhagwandas Vrijbhukandas Shariff & Ors. v. Naran Kanji & Ors., AIR 1932 Bom 595, the defendants contended that the joining of two causes of action in the same suit in contravention of O.2,R.4 amounted to a misjoinder of causes of action, the contention was turned down in view of the provisions of O.2,R.7, observing that the defendants had not taken the objection at the earliest possible opportunity. In New Mofussil Co. Ltd. & Anr. v. Shankerlal Narayandas Mundade, AIR 1941 Bom 247, it was held that absence of leave under O.2,R.4 would not be a ground to reverse or vary the decree, because the required leave can be granted even in appeal.

I do not think a joinder of causes of action in contravention of the provisions of O.2, R.4 will be a case of misjoinder. Misjoinder of causes of action means the improper joining together of different causes of action, it is not a ground for dismissal. A joinder of causes of action other than according to the provisions of O.2, R.3, except as provided by the provisions of O.2,R.4, will be a case of misjoinder. A misjoinder always remains a misjoinder, though under the circumstances mentioned in O.2,R.7 the defendant may lose his right to object, and the question of the leave of the court just does not arise. The case under O.2,R.4 is different. Here, in a given case, even a joinder of causes of action quite according to O.2,R.3 may not be permissible without the leave of the court. By granting leave the court does not legalise a case of misjoinder of causes of action, it rather permits an otherwise proper joinder according to O.2,R3. A joinder of causes of action in contravention of O.2,R.4 is an irregular joinder, hence it can be regularized by the leave of the court at any stage. The bar is not a total bar. It would have been total in the absence of the provision for the leave of the court, in that case a joinder in contravention of O.2,R.4 would have been illegal.

The three agreements - the first one, Ex A, between Bonus and Metro concerning licence to enter upon and use the suit flat; the second, Ex B, between Shanti and Metro concerning hire of the furniture, fixtures, etc. lying in the flat for the licence period; and the third, Ex C, between Navratan and Metro for hire of five 1.5-ton air conditioners lying and partly fixed in the flat also for the licence period; - all were executed on May 16, 1997. Lives of Exs B and C were coterminous with the life of Ex A. The life of the licence under Ex A, unless terminated earlier, was to expire on April 15, 1998, and possession of the articles of immovable property under Exs B and C was to be delivered by Metro at once. In the suit Bonus, claiming expiration of the term of the licence under Ex A, has sought recovery of the immovable property, Shanti and Navratan, also making same claim, have sought recovery of their movable properties; and all have sued for arrears according to agreements and mesne profits. It is, therefore, evident that claims in which the relief sought is based on the same cause of action, and hence the case is covered by cl.(c) of R.4 of O.2. Even if it is held that the cause of action on which Bonus has instituted the suit did not give Shanti and Navratan any right to make their respective claims included in the suit; and that their causes of action are separate, I do not think there is any reason to dismiss the suit, in so far as they are concerned. Facts stated hereinbefore show that even if there are three separate causes of action giving the plaintiffs right to make their respective claims against the defendants, each of them is interested in the causes of action of the others, and thus they are jointly interested against the same defendants; and hence, in view of the provisions of O.2,R.3, they could unite such causes of action in the same suit. But in such case, in view of the bar in O.2,R.4, their causes of action could not be joined with Bonus's suit for recovery of immovable property without the leave of the court. I agree with the proposition that the leave that could be granted, if sought, at the institution of the suit, can still be granted; and I am minded to do so, especially when leave granted at this stage will not in any manner prejudice the defendants who have consciously contested all the claims of the plaintiffs. Accordingly, I say that if the leave is required, then it shall be deemed to be granted.

I, therefore, hold that the suit is maintainable in its present form; and accordingly, I answer the first issue in the affirmative.

The fifth issue is: "Did the plaintiff install five air-conditioning units at the suit flat?" The plaint case is that under an agreement dated May 16, 1997 Navratan, the third plaintiff, hired out his five 1.5-ton air conditioners lying and partly fixed in the flat for Rs.10,000 per month for the life of licence under Ex A; that the defendants did not pay Rs.5,000; and that in their letter dated September 16, 1998 they wrongfully contended that the plaintiffs had taken away the air conditioners. The case stated in the written statement is that though the agreement was executed, the defendants paid Rs.1.05 lakh only on March 17, 1998 and April 11, 1998, once Navratan assured that the air conditioners would be supplied immediately after restoration of electricity to the suit flat.

As to the fifth issue, Jugalkishore, PW.1, in his examination-in-chief has said (q.13) that out of the five air conditioners in the suit flat, three were fitted in three bedrooms and two were kept in the servant quarters for fitting them in the hall later on; (qq.28-33) that under the agreement dated May 16, 1997, Ex C, Navratan hired out the air conditioners to Metro; (q.43) that after expiration of the term of licence the defendants did not hand over the air conditioners; and (q.207) that the allegation that the air conditioners were not supplied is incorrect. In his cross-examination PW.1 has said (q.265) that there was no air conditioner in 1993; (q.285) that after taking the flat in 1993 the defendants did not install any air conditioner; (q.289) that in 1993 all the rooms had gap in the wall for fitting air conditioner; (q.290) that at the time of handing over possession in 1993 the plaintiffs fixed wooden ply on the gaps; (q.291) that in 1997 Navratan installed three air conditioners in three rooms and kept two air conditioners with all fittings for fixing them later on; (q.296) that he did not disclose any document showing purchase of five air conditioners by Navratan, since he was not asked to do that; (q.297) that he did not see the defendants installing two air conditioners in the flat immediately after taking it in 1993; (q.298) that it is not true that Navratan did not supply or install any air conditioner in the flat in 1997. Hiralal, DW.1, in his examination-in-chief has said (qq.91-92) that there are three holes in three rooms of the suit flat for fitting air conditioners; (q.93) that there is no hole for installation of an air conditioner in the hall; (q.95) that there are two air conditioners in the flat (at the date he was deposing, i.e. June 12, 2008); (q.96) that the two air conditioners are owned by the defendants; (q.97) that the defendants purchased the two air conditioners sometime in 1998 or early in 1999; (q.98) that there is no hole in the flat in which no air conditioner has been fixed; (q.99) that the hole has been blocked by strong plywood; (q.100) that the plaintiffs never let out any air conditioner to him; (q.101) that the holes existing in the flat would not permit installation of five air conditioners; (qq.102-108) that though no air conditioner was supplied according to terms of Ex C, he made payment according to it on the assurance given that the air conditioners would be delivered and installed; (q.109) that the amount paid under the agreement was to be treated as a security deposit; (qq.111-112) that subject to "reinstallation" of electricity it would have been possible to operate the air conditioners, if supplied according to Ex C. In his cross-examination he has said (qq.371-372) that he owned air conditioners even before 1998; (q.374) that before 1998 he got his air conditioners maintained by some refrigeration company; (q.381) that no document was disclosed to show that he owned any air conditioner before 1998; (qq.382-385) that he purchased air conditioners in 1998, and might be prior to shifting to 1A, Asutosh Mukherjee Road accommodation; (q.386) that he is unable to remember whether at the date the air conditioners were purchased there was any business activity in the suit premises; (q.387) that around April- May, 1998 he shifted to the accommodation at 1A, Asutosh Mukherjee Road; (q.388) that after such shifting there was no activity in the suit flat; (q.389) that the air conditioners were purchased for his office at 1A, Asutosh Mukherjee Road; (q.391) that he does not remember how many holes were there in the accommodation at 1A, Asutosh Mukherjee Road; (qq.395-397) that one can say that in the hall of suit flat there are two windows; (q.399) that he never raised any objection to the correctness of the contents of Ex C; (q.400) that he signed Ex C after going through the contents thereof and understanding the same; (q.401) that Ex C did not provide for any security deposit; (q.403) that he does not remember whether after executing Ex C till September, 1998 he wrote any letter to the plaintiffs saying that no air conditioner was supplied to him by the plaintiffs. Haradhan, DW.2, in his examination-in-chief has said (q.15) that after coming to the suit flat in 1993 Metro purchased air conditioners, and then two air conditioners were installed, but no air conditioner was installed in the hall or in the room used by them. Question 19 put to him was this: "In 1998 when the office was shifted to 1A, Asutosh Mukherjee Road what happened to the two air conditioners?" And his answer to the question is: "When the office was shifted to Asutosh Mukherjee Road two air conditioners were purchased and one of the old air conditioners were installed by Mr. Jaisingh in his residence and one by me. M.S. Tehesilder in his residence." In his cross-examination DW.2 has said (qq.31- 41) that he has nothing to show that in 1993 two air conditioners were purchased by Metro, or that the air conditioners were installed in the suit flat in 1993.

From the case stated by the parties in their pleadings it is evident that the fact of execution of the agreement dated May 16, 1997 between Navratan and Metro is not in dispute. PW.1 has proved the agreement, marked Ex C. It was stated in the agreement that Navratan was hiring out his five 1.5-ton air conditioners lying and partly fixed in the suit flat to Metro for Rs.10,000 per month. The life of licence under Ex A was eleven months. So under Ex C, Metro was to pay Navratan total Rs.1.1 lakh. The defendants stated a case that when Navratan assured them that the air conditioners, which had never been supplied, would be supplied once electricity was restored to the suit flat, they paid him Rs.1.05 lakh on March 17, 1998 and April 11, 1998. DW.1 in his evidence has said that this amount was to be treated as a security deposit. Evidence shows that in November-December, 1997 Metro started looking for a new accommodation; that in January-February, 1998 Hiralal told Jugalkishore that Metro would vacate the suit flat; that life of licence under Ex A, due to expire on April 15, 1998, was not extended before March 17, 1998 or thereafter; that in April-May, 1998 the defendants shifted to their new accommodation at 1A, Asutosh Mukherjee Road; that they never complained to anyone about electricity to the suit flat; that they never said that according to Ex C Navratan did not supply the air conditioners. It is thus just not believable that a few days before expiration of the terms of Exs A and C and when they had already arranged a new accommodation, the dependants would have paid Navratan Rs.1.05 lakh out of total Rs.1.1 lakh payable under Ex C, treating it as a security deposit, on Navratan's mere assurance that he would supply the five air conditioners once electricity to the suit flat was restored. Unless the air conditioners were supplied and installed, they would not have paid almost the whole of the amount payable under Ex C. The evidence shows that there were three holes in three bedrooms for fixing air conditioners, and that two air conditioners could be fixed in the windows in the hall. PW.1 has said that three air conditioners were fixed in the three bedrooms and two were kept in servant quarters for fixing them in the hall later on. No suggestion has been given to him that the five air conditioners mentioned in Ex C were not supplied, or that the sum of Rs.1.05 lakh was paid by way of security for supplying the air conditioners. In fact, he has not been asked anything regarding the payment. Though no case was stated in the written statement that after entering upon the flat in 1993 the defendants fixed two air conditioners in two rooms, such a case has been suggested to PW.1 who has disputed the correctness of the case. DW.1 has not given any evidence that he fixed two air conditioners in 1993. He has admitted that air conditioners were there before 1998, and that he got them repaired by engaging some refrigeration company. According to Ex C, Metro was to maintain and repair the air conditioners. DW.1 has sought to prove that the air conditioners belonged to the defendants. He has failed in his attempt. Ultimately, he has said that the defendants purchased two air conditioners in 1998 or early in 1999. It is to be noted that according to him Metro shifted to its new accommodation in April- May, 1998. It is, therefore, evident that at the date Ex C was executed three of the five air conditioners had already been fixed in the three bedrooms of the suit flat and the remaining two were kept in the servant quarters of the suit flat for fixing them in the hall later on. There is nothing to show that the plaintiffs were under an obligation to fix the two air conditioners in the hall, that could be done by the defendants themselves as well. It is to be noted that DW.2 has said (q.19) that while shifting to new accommodation the defendants took with them two air conditioners from the suit flat.

I, therefore, hold that according to the terms and conditions of Ex C Navratan hired out and actually supplied the five 1.5-ton air conditioners out of which three had been fixed in three rooms before the agreement was executed and two were kept in the servant quarters of the suit flat for fixing in the hall later on. Accordingly, I answer the fifth issue in the affirmative.

The sixth issue is: "Did the plaintiff ever supply any furniture to the defendants and whether those were returned back to the plaintiff by the defendants?" The case of the plaintiffs is that Shanti hired out her furniture, fixtures, etc. to Metro under the terms and conditions of an agreement dated May 16, 1997. They have alleged that Metro did not return the articles. The case of the defendants is that they returned the furniture. On the issue Jugalkishore, PW.1, in his examination-in-chief has said (qq.21-27) that particulars of the articles will appear from the agreement dated May 16, 1997, Ex B, between Shanti and Metro; (qq.42-43) that after expiration of the term of licence the defendants did not return the furniture, fittings, fixtures, etc.; (q.208) that the claim of the defendants that they returned the furniture, fittings and fixtures is incorrect. On the other hand, on the sixth issue Hiralal, DW.1, in his examination-in-chief has said (q.86) that when he intimated his decision to surrender the tenancy, the plaintiffs removed the furniture or fixtures from the flat; (q.169) that the plaintiffs took back the furniture in 1998 when they initially indicated that they would refund the security deposit. In his cross-examination he has said (q.264) that he never raised any objection to the correctness of the contents of Schedule-B to Ex B; (q.366) that he delivered the furniture to the plaintiffs without keeping any acknowledgement therefor; (q.367) that he would still expect the court to believe that he returned the furniture to the plaintiffs; and (q.369) that the security deposit for the furniture was more than the security deposit for occupation charge. On the sixth issue Haradhan, DW.2, in his examination-in-chief has said (q.20) that when Metro shifted to 1A, Asutosh Mukherjee Road it took away all furniture and fittings except a few ceiling and exhaust fans; and that some tables and chairs belonging to Jugalkishore were handed over to him. In his cross-examination he has said (q.66) that he has no document to show that the furniture were handed over to Jugalkishore, but he had seen that the furniture were handed over to him.

The defendants admitted in their written statement that the articles of immovable property belonging to Shanti and already lying in the suit flat were hired out to them. They never questioned the correctness of the contents of Ex B, the agreement concerned. Hence there was no dispute that the furniture and other articles mentioned in the Schedule to Ex B were actually hired out by Shanti to Metro for the life of the licence under Ex A for Rs.15,000 per month. The dependants rather disputed the plaintiffs' case that Metro did not return the articles. In the written statement it was stated that the fact that the articles, except eight fans, were returned was mentioned in Metro's lawyer's letter dated September 9, 1998; and that the articles were returned in furtherance of its offer to hand over possession of the suit flat. This case was not suggested to PW.1 when he was cross-examined. As a matter of fact, inspite of his evidence in-chief that the claim of the dependants that the articles were returned by them was incorrect, in cross-examination it was not put to him that the defendants returned the articles to him. On the contrary, as will appear from q.369 a new case was suggested to him. Question 369 put to him and his answer thereto are: "369. I suggest to you that whatever furniture were given by the plaintiff no.2 to the defendants have been taken back by the plaintiff well before filing of the suit?/ I disagree." In his turn DW.1 made an attempt to prove this new case, though there was no scope for giving evidence in proof of a case not stated in the written statement. According to DW.1, the furniture or fixtures were removed from the flat by the plaintiffs when he intimated the issue of surrender of the tenancy. He has not given any evidence that the defendants returned the articles to the plaintiffs. In cross-examination he has said that he returned the furniture without taking any receipt. The security deposit under Ex B was Rs.1.5 lakh. Admittedly this amount has not been refunded by Shanti to Metro. DW.2 has said that while shifting to the 1A, Asutosh Mukherjee Road accommodation Metro took away all furniture and fittings, except a few fans, from the suit flat. DW.2 has then said that he had seen that a few tables and chairs were returned to PW.1 by Metro, - once again a case neither stated in the written statement, nor put to PW.1. It is, therefore, evident that the defendants, asserting that the articles were returned by them to the plaintiffs, have failed to prove their case. It is simply not believable that without receiving the security deposit of Rs.1.5 lakh and also without taking any receipt, they would have, of their own accord, returned the furniture, fixtures, fittings, etc. mentioned in Ex B or permitted the plaintiffs to remove them from the suit flat.

I, therefore, hold that the articles of movable property mentioned in Ex B were supplied by Shanti to Metro; and that they have not been returned by the defendants to the plaintiffs; and accordingly, I answer the first part of the sixth issue in the affirmative, and the second part in the negative.

The seventh and eighth issues are: "vii) Is the plaintiff entitled to the decrees as prayed for including the decree for damage? viii) To what other relief/reliefs, if any, is the plaintiff entitled?" The plaintiffs' first prayer is: "Decree for khas possession of the fully furnished flat together with furnishings, electrical installations and other amenities, full particulars, whereof are set out in Schedule "A" hereto;" This relief is dependent on the out come of the first, second, fifth and sixth issues. The first issue is whether the suit is maintainable in its present form, I have held that it is. The second issue is: "Is the defendant a monthly tenant with respect to suit flat under plaintiff no.1?", I have held that it is not; and that it entered upon the suit flat by licence of the first plaintiff, Bonus, granted according to the terms and conditions of Ex A life whereof expired on April 15, 1998. Therefore, Bonus became entitled to possession of the suit flat after April 15, 1998. Since possession was not delivered by the defendants, I hold that Bonus is entitled to a decree for the purpose. The fifth issue is: "did the plaintiff install five air-conditioning units at the suit flat?", I have held that according to the terms and conditions of Ex C Navratan hired out and actually supplied the five air conditioners out of which three had been fixed in three rooms before the agreement was executed and two were kept in the servant quarters of the suit flat for fixing in the hall later on. This sixth issue is: "did the plaintiff ever supply any furniture to the defendants and whether those were returned back to the plaintiff by the defendants?", I have held that furniture, fixtures, fittings, etc. were hired out by Shanti to the defendants according to the terms and conditions of Ex B; and that the defendants did not return the articles of movable property mentioned in Ex B. In view of these answers, I hold that the plaintiffs are entitled to a decree in terms of prayer (a).

It seems to me that the plaintiffs are entitled to a decree in terms of prayer (a) also on the basis of a part of their alternative case that even if Metro is a tenant entitled to protection against eviction provided by the provisions of the West Bengal Premises Tenancy Act, 1956, in view of notice to quit given by it and also in view of the fact that subsequent to creation of the tenancy it agreed in writing with Bonus to deliver vacant possession of the suit premises to Bonus, but has failed to do so, it is no longer entitled to any protection against eviction. Mr Abhrajit Mitra has submitted that since the case stated in the plaint is based on the cause of action in refusal to deliver possession on expiration of life of the licence, Bonus cannot make out a new case under provisions of the West Bengal Premises Tenancy Act, 1956; that it will appear from Exs D,E & F that notice under s.13(1)(j), that must be an unconditional one, given by Metro was a conditional one; that since Bonus did not comply with the condition that it should refund the security deposit at once, by not delivering possession, Metro has not lost its statutory protection against eviction. I think, as to notice to quit under s.13(1)(j), there is sufficient force in the argument that since Bonus did not comply with the condition, Metro did not lose its statutory protection against eviction. There is no evidence to show that in compliance with the condition Bonus offered to refund the payable part of the security deposit. According to the notice to quit, Metro offered to deliver possession on refund of payable part of the security deposit at once. But the other ground, it seems to me is a formidable one, and Mr Abhrajit Mitra has found little to say in relation to that ground. Question 473 put to Hiralal in his cross-examination and the answer thereto given by him are as follows: - "473. I am suggesting it to you that after entering into possession of the suit flat in 1993 by the agreements dated 16.5.1997 agreed in writing to vacate the suit flat on expiry of the period of 11 month from the date of the said agreements?/ Yes." It is, therefore, evident that Hiralal himself has admitted that after creation of the tenancy in 1993, as claimed by him, he agreed in writing with Bonus to deliver possession of the suit premises to Bonus on expiration of eleven months from May 16, 1997. The admitted position is that he did not deliver possession after April 16, 1998. I do not find any reason to accept the case that the plaintiffs have not stated in their pleading any case under s.13(1)(k). They have pleaded the case, the agreement, Ex A, has been proved, and Hiralal has categorically admitted that after creation of the tenancy, as claimed by him, he agreed in writing to deliver possession to Bonus. Under the circumstances, I am of the view that on this ground also the plaintiffs are entitled to a decree in terms of prayer (a).

Prayers (b),(d),(f) and (h) are: "...(b) Decree for Rs.34,008.25p. in favour of the plaintiff No.1;...(d) Decree for Rs.45,150.00 in favour of the plaintiff No.2;...(f) Decree for Rs.5,120.00 in favour of the plaintiff No.3; ...(h) Decree for Rs.6,88,688.00 in favour of the plaintiffs as pleaded in paragraph 14 above;..." Jugalkishore has said (qq.181-184) that at the institution of the suit the defendants were liable to pay Bonus Rs.25,000 for licence fee, Rs.2,000 for electricity and Rs.1325 for maintenance; (qq.185-188) that at the institution of the suit the defendants were liable to pay Shanti Rs.37,500, and (qq.189-191) Rs.5,000 to Navratan; (qq.192-194, 210) that according to terms and conditions of Ex A from April 16, 1998 the defendants became liable to pay damages at the rate of Rs.2,000 per day. The plaintiffs have claimed interest on these amounts at the rate of 24% per annum. In prayers (c), (e),(g) and (i) they have prayed for interim interest and interest on judgment at the same rate of 24% per annum. In prayer (j) they have prayed for "Decree for damages and/or mesne profit in favour of the plaintiffs No.1, 2 and 3 from the date of decree until delivery of possession. In prayer (k) they have made an alternative prayer for enquiry into damages and a consequent decree for the amount determined after enquiry. I am of the view that the plaintiffs are entitled to decrees for the principal sums mentioned in paras.7,8,9, and 10 of the plaint. I do not think it will be reasonable to hold that they are entitled to interest at the rate of 24% per annum. This is not the agreed rate. I think it will be appropriate to grant them interest at the rate of 10% per annum. Hence I hold that they are entitled to interest on all principal amounts and also interim interest and interest on judgment at the rate of 10% per annum. The agreed rate of damages mentioned in Ex A is Rs.2,000 per day payable to Bonus. There is nothing on the basis whereof damages payable to Shanti and Navratan can be fixed at any rate higher than the rate mentioned in their respective agreements. I think it will be appropriate to grant them damages at the monthly rate at which they hired out their respective articles of immovable property. Hence I hold that they are entitled to decrees for damages at those rates. I do not think at this stage there is any need to grant the plaintiffs any relief in terms of prayers (l),(m)(n) and (o). I am however of the view that they are entitled to costs.

For these reasons, I allow the suit on contest and with costs. There shall be a decree in terms of prayer (a); decrees in terms of prayers (b),(d),(f) and (h) for the principal sums mentioned in paras.7,8,9 and 10 of the plaint, with interim interest and interest on judgment at the rate of 10% per annum; decrees in terms of prayer (j) for mesne profits, past and future, at the rate of Rs.2,000 per day for Bonus, at the rate of Rs.15,000 per month for Shanti, and at the rate of Rs.10,000 per month for Navratan, with interest on all amounts at the rate of 10% per annum. The decrees shall be drawn up, prepared and completed within a fortnight.

Urgent certifies xerox of this judgment, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.

(Jayanta Kumar Biswas, J.)