Vummidi Bangaru Chetty (P) Ltd. vs Spencer and Co. Ltd.

F.M. Ibrahim Kalifulla, J.—Petition against the order and decretal order dated 25.09.2001 made in M.P.No.250 of 2001 in E.P.No.539 of

2000 in R.C.O.P.NO.2037 of 1998 on the file of the XIII Judge, Court of Small Causes, Chennai.

The challenge in this revision is to the order of the execution Court dated 25.09.2001 in M.P.No.250 of 2001 in E.P.No.539 of 2000 in

R.C.O.P.NO.2037 of 1998, rejecting the petitioner''s application filed u/s 47 C.P.C. to dismiss E.P.No.539 of 2000, on the ground that the

decree of eviction granted in R.C.O.P. was a nullity.

Twin questions arise for consideration in this revision, namely, as to whether this court lacks jurisdiction to deal with this revision and also as to

the correctness of the order impugned in this revision.

As the preliminary objection as to the maintainability of this revision has been raised, it has become incumbent upon me to deal with the said

question in the first instance before going into the question about the correctness of the order impugned in this revision. On the preliminary issue

raised at the instance of the respondent, the relevant provision that requires investigation is with regard to Section 18 of The Tamil Nadu Buildings

(Lease & Rent Control) Act, 1960 read along with Section 47 C.P.C.

To understand the controversy and scope of the issue raised, it is worthwhile to extract the above referred to Sections. Section 18 of the Tamil

Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter referred to as ''the Act'') reads as under :

Execution of Orders : (1) Every order made under Sections 10,14,15,16 and 17and every order passed on appeal u/s 23 or on revision u/s 25

shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose, the Controller shall have all the powers of a

Civil Court.

(2) An order passed in execution under sub-section (1) shall not be subject to any appeal or revision.

Section 47 C.P.C. is to the following effect :

Questions to be determined by the Court executing decree : (1) All questions arising between the parties to the suit in which the decree was

passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing

the decree and not by a separate suit.

(2) Omitted by Amendment Act, 1976.)

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section,

be determined by the Court.

(Explanation I: For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed

are parties to the suit.

Explanation II: (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the

suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions

relating to the execution, discharge or satisfaction of the decree within the meaning of this section.)

The contention raised on behalf of the respondent is that when Sub-Section 2 of Section 18 of the Act places an embargo on any appeal or

revision against an order passed under Sub-Section 1 of Section 18 and when the present order impugned in this revision came to be passed by

the execution Court by virtue of the execution proceedings launched u/s 18(1), though the present order came to be passed in an application filed

u/s 47 C.P.C., in that execution proceedings, it is nonetheless an order passed in the proceedings launched u/s 18(1) of the Act and, therefore, the

Revision was not maintainable.

To deal with the vexed question raised, the brief facts are also required to be stated, which are as under :

The respondent filed R.C.O.P.No.2037 of 1998 for eviction on the ground of additional accommodation u/s 10(3)(c) of the Act. The petitioner

having remained exparte in the said proceedings, an order of eviction came to be passed on 02.03.1999. Based on the said order of eviction,

when the respondent filed E.P.No.539 of 2000, the petitioner came forward with the present M.P.NO.250 of 2001, contending that the

relationship between the petitioner and the respondent was one of licensor and licensee, that there was no landlord-tenant relationship and

therefore, the Act itself was not applicable to the case on hand and consequently, it was prayed that when there was no inherent jurisdiction to

entertain the main R.C.O.P., the eviction order was not executable and therefore, the E.P.was liable to be dismissed. The said M.P. was resisted

by the respondent, contending that the present contention raised in the M.P. was not tenable and that the Execution Petition was maintainable. The

execution Court reached a conclusion that the contention that the Court lacks jurisdiction was not acceptable and therefore, the application filed u/s

47 C.P.C. was liable to be rejected.

In the above stated background, the question for consideration is, whether in the present revision, the order impugned can be questioned ?

In this context, several decisions were cited by both the parties. On behalf of the respondent, reliance was placed upon the judgments reported

in S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai, Bhawarlal Bhandari Vs. M/s. Universal Heavy Mechanical Lifting Enterprises, and 2000 (1)

L.W.481 (S.P.Manoharan and S.P.Raveendran v. Zamila Beevi and 5 Others). On the other hand, learned counsel for the petitioner relied upon

the judgments reported in M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., , Fathima Automobiles Vs. P.K.P. Nair and

Another, , 1990 (2) L.W. 521 (Vincent Poobalarayar v. The Rent Controller (District Munsif), Tuticorin and 2 others) S.S. Khader Mohammed

Rowther and Co. Vs. G.S. Sundaram and Brothers, , Mrs. M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, and Quality Cut

Pieces and Vs. M. Laxmi and Co., .

In the judgment reported in 2000 (1) L W 481 the question for consideration was, when an order of eviction was passed in an application filed

u/s 11(4) of the Act and when the said order was challenged in an R.C.A., whether, after the disposal of the R.C.A., would it be open for the

tenant to contend before the Rent Controller that the order came to be passed exparte and therefore it should be heard again ? It was in that

context, it was held that on the principles of res-judicata, there was no scope for reagitating the matter, which has already become final. In the facts

and circumstances of the case on hand, in my considered view, the said judgment is totally inapplicable.

In the judgment reported in 1980 TLNJ 155 the learned Judge has dealt with the case similar to the one involved herein and the statement of

law in the said judgment is to the following effect :

Merely because in a statute provisions of CPC are adopted, it does not mean that in spite of specific exclusion made regarding appeals and

revision therein, the procedural law, which has been invoked, would override a specific provision of the Act. Instead of annexing the provisions of

the CPC as part of Section 18 or to that of the Act, for the purpose of convenience, the applicability of the CPC to the proceedings and orders

passed by the Rent Controller is envisaged u/s.18(1) of the Act. Being fully aware of the existence of the provisions made for appeals and revisions

in C.P.C., the legislative intent to exclude such appeals or revisions had been specifically incorporated in S.18(2) of the Act. The maxim ''generalia

specialibus non derogant'' is applicable herein. In spite of what is provided u/s.18(2) of the Act, if this Court is to exercise jurisdiction u/s.115 of

the Civil Procedure Code, it would be against the legislative intendment. The remedies provided under a particular statute have to be worked out

within the four corners of the statute.

Similarly, in the judgment reported in 1982 (1) MLJ 212, in more or less identical circumstances, the learned Judge has stated as under in

paragraph 5 :

Learned counsel for the tenant submitted that the bar u/s 18(2) operated only in a case where the order sought to be revised is an order ""passed

in execution"". According to learned counsel, in a case where the Rent Controller declines to declare an order of eviction as a nullity, that order

cannot be regarded as ""an order passed in execution"", within the meaning of Section 18(2). I do not accept this contention as being based on a

true construction of Section 18(2). To accept the argument of learned counsel would lead to curious results. For, on that interpretation if the Rent

Controller dismissed an execution petition, then a revision would be available whereas, if he allows an execution petition, a revision will not be

available. I do not think that the bar u/s 18(2) can be made to depend on the nature of the order passed by the Rent Controller u/s 18(1) of the

Act. In my opinion, every order passed by the Rent Controller while disposing of an execution petition must be regarded as ""an order passed in

execution under Sub-section (1)"" of Section 18.

In the judgment reported in Bhawarlal Bhandari Vs. M/s. Universal Heavy Mechanical Lifting Enterprises, :it has been held that execution

Court cannot go behind the decree unless it is shown that it was passed by a Court, having inherent lack of jurisdiction, which would make it a

nullity. In the said judgment, the Hon''ble Supreme Court was pleased to extract the observation of an earlier judgment of the Supreme Court itself

reported in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, , which can be usefully referred to for our present purpose.

..... The observation at SCR p.68 of the Report deserves to be extracted in extenso : (SCC pp.672-73, paras 6-7)

A Court executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its

tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in

appeal or revision, a decree even if it be erroneous is still binding between the parties.

When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was

dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a

proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may

be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to

pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could

have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on

the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarthi, the Judicial Committee held that where a

decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution

proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree

upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction.

The aforesaid decision of this Court squarely applies to the facts of the present case. This is not a case in which the award decree on the face

of it was shown to be without jurisdiction. Even if the decree was passed beyond the period of limitation, it would be an error of law or at the

highest, a wrong decision which can be corrected in appellate proceedings and not by the executing Court which was bound by such decree. It is

not the case of the respondent that the Court which passed the decree was lacking inherent jurisdiction to pass such a decree. This becomes all the

more so when the respondent did not think it fit to file objection against the award which was sought to be made the rule of the Court.

In the Division Bench judgment of our High Court reported in Fathima Automobiles Vs. P.K.P. Nair and Another, , while dealing with a case,

which arose u/s 18(1) and (2) of the Act vis-a-vis Order 21 Rules 97 and 101 of C.P.C., the Division Bench has held as under in paragraph 5 :

...... Thus, a close reading of S.18 and S.23, indicates that there may be orders passed by the Rent Controller which may not fall within S.18(1)

and that those orders may be subject to appeal under S.23 of the Act. It is further significant to note that S.23(1)(b) confers right of appeal to `any

person aggrieved'' by an order passed by the Controller. The use of the expression `any person'' in S.23(1)(b) seems to suggest that it is not only

the parties to the eviction order but also persons affected by any order passed by the Rent Controller could file an appeal. If the filing of the appeal

under S.23 is contemplated only by the parties to the eviction proceedings, then the Legislature would have used the words `any party aggrieved''

instead of `any person aggrieved''. The use of the general expression like `person'' would indicate that, as already stated, an appeal could be

maintained not only by a party to the eviction proceeding but also by a person who feels aggrieved by any order passed by the Controller. In this

case, the executing Court has passed an order directing the tenants to deliver possession of the property in pursuance of the order of eviction. That

Order alone can be taken to be an order passed under S.18(1). Subsequent to such an order, the appellant herein has obstructed the delivery and

an application under O.21 R.97 C.P.C. has been filed, and an order has been passed by the Rent Controller on that application. The order passed

by the Rent Controller in an application under O.21 R.97 cannot, in our view, be taken to be an order passed under S.18(1) of the Act. That

should be taken to be an independent order passed under the CPC and not under the Rent Control Act. Though the order is actually passed by

the Rent Controller in an application under O.21 R.97 C.P.C., that should be taken to have been passed by him in exercise of the powers of a

Civil Court as provided in S.18(1) of the Act. We are not therefore in a position to construe the order passed by the Rent Controller in an

application under O.21 R.97 C.P.C., as an order passed by the Rent Controller under S.18(1) so that the bar under S.18(2) could be invoked.

Section 18(2) bars an appeal or revision only in respect of an order passed in execution under sub-s.(1). But, that section will not be a bar for an

appeal or revision being filed against an order passed in exercise of the power under O.21 R.97 C.P.C. If there is no bar for an appeal or revision

under S.18(2), then the next question that will arise is as to whether an appeal is available to the appellant in this case."" "".......In this view of the

matter, we have to hold that under S.23(1)(b) of the Act, an obstructor who is aggrieved against an order directing removal of obstruction passed

by the Rent Controller could file an appeal under that section and the bar contained in S.18(2) will not apply to such an order. We have to hold

that in this case, the appellant has a right to appeal under S.23(1)(b) of the Act against the order impugned in the writ petition directing removal of

obstruction which is an order not passed under S.18(1), but one passed under O.21 R.97 C.P.C......"" (underlining is mine).

The said Division Bench judgment was followed by a subsequent Division Bench in the judgment reported in 1990 (2) L.W.521.

In the judgment reported in M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., , while dealing with the validity of a Civil Court

decree for eviction, in the context of a subsequent declaration made by the Hon''ble Supreme Court striking down the limitations prescribed under

Sections 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, restricting the jurisdiction of the Act based on the monthly rent

payable in respect of a residential premises while ultimately holding that the Civil Court acting without the aid of the exclusionary provision in

Clause (ii) of the Section 30 during the period of invalidity has become corum non judice and its proceedings resulting in the decree a nullity was

pleased to rely upon an earlier judgment of the Hon''ble Supreme Court reported in Kiran Singh and Others Vs. Chaman Paswan and Others, ,

which is to the following effect :

......It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set

up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of

jurisdiction, whether it is pecuniary or territorial , or whether it is in respect of the subject matter of the action, strikes at the very authority of the

Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be

determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram

non judice, and that its judgment and decree would be nullities."" (underlining is mine)

In the above stated declaration of law made in the above referred to judgments, the question that remains for consideration is, as to whether

this Revision Petition is maintainable ?

In my considered opinion, this Revision is maintainable for the following reasons :

It is true that the judgments of His Lordship Mr.Justice Sathiadev as well as His Lordship Mr.Justice V.Balasubrahmanyan reported in 1980 TLNJ

155 and S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai, support the stand of the respondent. However, the reasoning of the Division Bench

judgment reported in Fathima Automobiles Vs. P.K.P. Nair and Another, , though rendered with particular reference to an application dealt with

under Order 21 Rules 97 and 101 C.P.C. still whatever said in the said judgment, would mutatis mutandis apply in all fours even with reference to

an application filed u/s 47 C.P.C. While in the latter it was a case relating to an obstructor, in the former, it was on the invocation of the omnibus

provision contained in Section 47 C.P.C. However, in either case, the parallel that could be drawn is that both the proceedings came to be initiated

in pending execution proceedings by invoking the relevant provisions contained in the Civil Procedure Code. When the Division Bench in the

judgment reported in Fathima Automobiles Vs. P.K.P. Nair and Another, having declared the law to the effect that the order passed by the Rent

Controller in an application filed under 21 Rule 97 CPC cannot be taken to be an order strictly passed u/s 18(1) of the Act and that, that order

should be taken to be an independent order passed under the CPC and not under the Rent Control Act, then, even though it was passed by a Rent

Controller, such an order could be challenged either by way of an appeal or revision. On a parity of reasoning, an application filed u/s 47 C.P.C.

would also meet with the same fate and thereby, that could also be challenged by way of a revision. When the position has been so succinctly

stated by the Division Bench without giving any scope for ambiguity, it will have to be held that the said dictum of the Division Bench would

virtually render the judgments of the learned single Judges reported in 1980 TLNJ 155 and S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai,

ineffective and thereby impliedly overruled the judgments of the learned single Judges. In other words, in view of the binding Division Bench

judgment of this Court reported in Fathima Automobiles Vs. P.K.P. Nair and Another, , the earlier two judgments of the learned single Judges

referred to above cannot be followed. Moreover, the Division Bench having held that an order even though passed in a proceedings u/s 18 of the

Act before the authority constituted under the Rent Control Act, by virtue of the application of the provisions of the Civil Procedure Code, the

ultimate orders passed in those applications based on the provisions of the CPC would be totally independent of the provisions contained u/s 18(1)

of the Act and thereby, the exclusion clause u/s 18(2) would not be applicable. It cannot be held that the said declaration of law could be applied

only to applications filed under Order 21 Rules 97 and 101 C.P.C. and not to applications filed u/s 47 C.P.C. Therefore, even though the

judgments of the learned single Judges reported in 1980 TLNJ 155 and S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai, were relating to

applications filed u/s 47 C.P.C., the Division Bench judgment will have to be preferred as against the judgments of the learned single Judges and

consequently, I hold that the Civil Revision Petition is maintainable.

In any event, in this context, when the question raised is based on the submission that the original decree was a nullity due to total lack of

jurisdiction, by virtue of the power vested with this Court under Article 227 of the Constitution, this Court can, suo motu, exercise jurisdiction and

set aside the order in the event of lack of jurisdiction as pleaded is found to be in order. For this proposition, I wish to draw support from the

decision of His Lordship Mr.Justice M.Srinivasan reported in 1992 (1) L.L.N. 627 (Tamil Nadu Mercantile Bank Ltd. v. T.Venkatesan), wherein,

in paragraph 28, the learned Judge was pleased to hold as under :

..... It is also open to me to exercise my power under Art.227 of the Constitution of India suo motu and call for the records in Interlocutory

Application No.22348 of 1990 and set aside the order made therein when it is found by me that the trial Court has no jurisdiction to entertain the

suit itself. Having come to the conclusion that the suit is unsustainable for want of jurisdiction in the Court in Civil Revision Petition No.1531 of

1991, which is undisputedly maintainable in this Court, I do not think it necessary to decide whether the other revision petition, viz., Civil Revision

Petition No.2269 of 1991 is maintainable or not. While taking note of the three rulings referred to above to the effect that this Court can exercise

its powers under S.115 of the CPC when the trial Court suffers from total lack of jurisdiction.......

In the judgment reported in Vishesh Kumar Vs. Shanti Prasad, , while dealing with a case, which arose out of a revisional order of the District

Judge u/s 25 of the Provincial Small Cause Courts Act, where the question was whether there could be a further revision of the revisional order of

the District Judge by the High Court u/s 115 C.P.C., the Hon''ble Supreme Court was pleased to hold that the High Court was not vested with

such revisional jurisdiction u/s 115 over a revisional order made by the District Court under that Section. The Hon''ble Supreme Court was also

pleased to hold that if such a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a small

cause suit, then the fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Court and

the District Court, as that would enable the High Court to enjoy jurisdictional power in respect of an order arising out of small cause suit, which

was never intended at all. In that context, when a submission was made that the case should be remitted to the High Court for considering the

revision petition as a petition under Article 227 of the Constitution, it was held that a revision u/s 115 C.P.C. is a separate and distinct proceedings

of a petition under Article 227 of the Constitution and one cannot be identified with the other.

A learned single Judge of the Gauhati High Court, in the judgment reported in AIR 1993 Gauhati 89 (Jyotish Chandra Borbara v. The Bura-

Gohain Tea Co.Pvt.Ltd and Ors.), following the above referred to Supreme Court judgment, was of the view that a revision petition filed u/s 115

C.P.C. was not maintainable, in view of the appeal remedy available to the petitioner in that case and the prohibition contained in Section 115(2)

of C.P.C. The learned Judge was also of the view that in view of the far more comprehensive and efficacious remedy available to the petitioner

therein under Order 43 Rule 105 of C.P.C., the remedy under Article 227 of the Constitution was not appropriate. The learned Judge therefore

hold that no interference was called for under article 227 of the Constitution.

In the judgment reported in 1995 (1) LW 141 (Annapoorni v. Janaki), His Lordship Mr.Justice M.Srinivasan, as he then was, was pleased to

hold as under in paragraph 11 :

When this Court finds that a decree suffers from an error of law apparent on the fact of the record owing to non-application of mind of the Court,

to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There

can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to

succeed to the estate of a deceased Hindu. There is no earthly reason for depriving the mother of the deceased of her legitimate share in the estate

which in this case happens to be a moiety. This is a typical case of miscarriage of justice which should be rectified the moment it comes to the

notice of this Court. It is only for that reason, I am exercising my powers u/s 115 of the CPC and Article 227 of the Constitution of India.

In the judgment reported in Aundal Ammal Vs. Sadasivan Pillai, , the views expressed in Vishesh Kumar Vs. Shanti Prasad, were emphasised

and the Hon''ble Supreme Court was pleased to state the law as under in paragraph 24 :

It was urged that in case we are of the opinion that a revision u/s 115 of the CPC does not lie, the case should be remitted to the High Court for

consideration as a petition under Article 227 of the Constitution. We are unable to accede. A petition under Article 227 of the Constitution is

different from revision u/s 115 of the Code of Civil Procedure. The two procedures are not interchangeable though there are some common

features. It must, however, be emphasised that we are not dealing in this appeal with the constitutional powers of the High Court under Article 227

of the Constitution nor are we concerned with the powers of the High Court regulating appeals under the Kerala High Court Act, 1958. We are

concerned in this case whether the High Court, in view of the scheme of the Act, had jurisdiction to interfere u/s 115 of the Code of Civil

Procedure. We reiterate that to vest the High Court with any such jurisdiction would be contrary to the scheme of the Act, would be contrary to

the public policy, and would be contrary to the legislative intent as manifest from the different sections of the Act.

Inasmuch as I have held that by virtue of the position that the exclusion clause u/s 18(2) of the Act would not apply to an order passed u/s 47

C.P.C; irrespective of the position as to whether suo motu revision under Article 227 of the Constitution could be exercised or not, since this Civil

Revision Petition is maintainable on its own, I overrule the preliminary objection raised on behalf of the respondent, questioning the maintainability

of the revision petition as against the order impugned in this revision.

When the correctness of the order impugned in this revision is scrutinised, it will have to be seen, whether on the face of the record, the decree

passed was one without jurisdiction.

On this aspect, the stand of the petitioner in M.P.No.250 of 2001 was that the relationship between the parties was one of licensor and

licensee and not of landlord and tenant and therefore, the order of eviction passed in the main R.C.O.P. was a nullity. In this context, reliance was

placed upon the judgment of the Bombay High Court, wherein the test to be applied to find out whether a particular document operates as a lease

or licence has been stated by extracting the judgment of the Hon''ble Supreme Court in Sohanlal Naraindas v. Laxmidas Raghunath reported in

1971 Maharashtra Law Journal 604 at p.607, which is to the following effect :

Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances.

The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a

lease will not preclude the agreement operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial

test in each case is whether the instrument is intended to create or not to create an interest in the property the subject matter of the agreement. If it

is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease

or a licence the test of exclusive possession, though not decisive, is of significance. Mrs. M.N. Clubwala and Another Vs. Fida Hussain Saheb and

Others,

A reading of the above extracted portion makes it clear that if the instrument intended to create an interest in the property, then, it would be a

lease and if it does not, it would only be a licence. Therefore, the crucial test here is creation of interest in the property while concluding the

proposal by way of a contract in order to hold the same as a lease. If the said conclusion by way of creation of interest in the property is not

disclosed, then it could only be construed as a licence and not a lease. Again in the judgment of the Hon''ble Supreme Court reported in Mrs.

M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, , it has been held that the intention of the parties is very relevant for

determination of the transaction.

On the above said principles, when the stand of the petitioner is analysed, I find that in the very application filed in R.C.O.P.NO.2037 of 1998

by the respondent, it is contended as under in paragraphs 3,4,5,6, and 7 :

......The petitioner entered into a concessionaire''s agreement in 1982 with the respondent in and whereby the respondents were permitted to

display and sell their products in the petitioner''s showroom on a leave and licence basis. It was made expressly clear in the Agreement, that the

arrangement did not constitute a tenancy and that it was purely a licensing arrangement under which the respondent was bound to pay the

petitioner a monthly commission at the rate of 10% on sales, together with service charges of Rs.500/- per month. Accordingly, both parties acted

in accordance with the above arrangement and the respondent displayed and sold their products under the above arrangement.

.....The petitioner therefore proposed to demolish the old Spencer''s Building Complex and to develop the entire property by promoting a multi-

storeyed building in the property. When the work started, the respondent along with other concessionaire''s, expressed their desire to continue the

then arrangement with the petitioner in the new shopping complex along with the petitioner.

.....The respondent accordingly shifted to the new complex known as ""Spencer Plaza"" (within the petitioner''s super market) on the same terms

as existed at that point of time, save that the respondent agreed to pay proportionate air-conditioning and maintenance charges based on actuals.

......As stated above, the respondent was liable to pay to the petitioner a monthly commission of 10% on the value of their sales, and service

charges of Rs.500/- per month together with A/c and maintenance charges. The respondent was therefore required to forward on a monthly basis

to the petitioner their sales details so as to enable the petitioner to work out the commission charges.

.....The petitioner caused a counsel''s notice to be issued to the respondent dated 03.04.1998 calling upon the respondent to cease the display

of their products from the area the respondents are occupying at Spencer Plaza, namely, the schedule mentioned space, and hand over vacant

possession of the same on the expiry of 30 days from the date of the notice. The petitioner submits that though the respondent had acknowledged

receipt of the said notice dated 04.03.1998, they have not come forward to vacate the space being used by them.

The petitioner submits that in view of the stand taken by the rest of the concessionaires who are occupying space within the petitioner''s super

market under similar arrangement, that they are not licensees but tenants under the petitioner, the petitioner is filing the present petition under the

Rent Control Act seeking eviction of the respondent from the said premises.

Therefore, a reading of the petition, on the face of it, discloses that even according to the respondent''s own averments in the main R.C.O.P.,

the relationship between the parties was only as licensor and licensee and not one of landlord and tenant. In fact, when the exparte order of

eviction came to be passed on 02.03.1999, the Rent Controller merely stated that P.W.1 was examined, Exs.P-1 to P4 were marked and that the

petition averments stood proved. On the above stated conclusion, the order of eviction came to be allowed. Ex.P-1 was an authorisation letter to

enable P.W.1 to depose before the Court. Ex.P-2 was a communication dated 24.06.1982, stated to have been written by the respondent herein

with reference to the relationship between the parties. Ex.P-3 was a lawyer''s notice issued on behalf of the respondent and Ex.P-4 was the

acknowledgement card. Therefore, except Exs.P-2 and P-3, there was no other material placed before the Rent Controller while seeking for the

order of eviction.

As rightly contended by the learned counsel for the petitioner, both Exs.P-2 and P-3 only confirm the position that the relationship was only by

way of licensor and licensee and not a lease. In fact, in the lawyer''s notice in Ex.P-3, it is specifically averred to the following effect :

It is relevant to point out that in terms of the arrangement entered into with my client, you are entitled to display and sell your products in my

client''s showroom as a licensee. In terms of the above arrangement, followed by mutual discussion had with my client''s representatives, you are

liable to pay my client a commission of 10% on the sales together with services charges of Rs.500/- per month."" (underlining is mine)

In fact, even though the petitioner remained exparte, it is the settled legal position that by virtue of the provisions contained in Section 10(3)(c)

read along with Section 10(3)(a) and (e), the Rent Controller should be satisfied with the bona fide claim of the landlord and that the Rent

Controller''s impression regarding the bona fide claim should be reflected in the order and without showing such satisfaction, if an order is passed,

the same cannot be construed as one passed in consonance with the provisions of the Act.

In the judgment reported in S.S. Khader Mohammed Rowther and Co. Vs. G.S. Sundaram and Brothers, , it was held that in the absence of

such a satisfaction reflected in the order, the very order itself would be a nullity.

If that is the position, the order of the Rent Controller dated 02.03.1999, in merely stating that the claims made in the petition were proved;

without any discussion; especially where the respondent itself came forward with the specific claim that the relationship between the parties was

only by way of licensor and licensee and not one of landlord and tenant, cannot be held to be one passed strictly in consonance with the

stipulations contained in Section 10(3)(c) of the Act read along with Section 10(3)(a) and (e) of the Act.

When that be the position, the present application filed by the petitioner in M.P.No.250 of 2001 in E.P.No.539 of 2000 u/s 47 C.P.C.

contending that the very order of eviction was a nullity and therefore, not executable was fully justified and sustainable and the order of the

execution Court in merely relying upon Ex.R-1, wherein, in the subject column, it is merely stated as rental lease to hold that the petitioner was a

tenant is wholly unsustainable.

Apparently, the execution Court had proceeded in an obsessive manner and was reluctant to examine the real issue posed for consideration,

which resulted in the passing of the order impugned in this revision. In fact, Ex.R-1 was not a document filed in the Rent Control proceedings, at

the instance of the respondent. By relying upon Ex.R-1, the respondent wanted to take a sudden ''U'' turn from the stand made in the main

R.C.O.P.itself, which ought not to have been permitted by the execution Court for mere asking. u/s 47 C.P.C., when it was incumbent upon the

execution Court to determine all questions arising between the parties in which the decree was passed in relation to its execution, especially, when

the said application sought for determination of a question about the executability of the decree on the ground that it was a nullity, by passing the

present order impugned in this revision, the execution Court has only shirked its responsibility by relying upon the expression contained in a

document, which was not even part of the earlier R.C.O.P. proceedings and the said document was not the basis for the determination of the

relationship between the parties, which, on the other hand, was, in fact, based upon Exs.P-2 and P-3, filed in the original proceedings. Therefore,

the execution Court committed a serious illegality by closing its eyes to the stark realities, while passing orders impugned in this revision and

thereby, rejected the application filed u/s 47 C.P.C., without discussing the relevant considerations with reference to the plea regarding the nature

of the decree as to whether it was executable at all.

In such circumstances, when, as discussed above, on the face of it, the decree was demonstrated to be a nullity, as rightly claimed by the

petitioner, the decree was inexecutable and consequently, the E.P. ought to have been dismissed on that score.

In the result, the Revision is allowed; the order impugned is set aside; M.P.No.250 of 2001 shall stand allowed and E.P.No.539 of 2000 shall

stand dismissed. No costs. Consequently, the connected C.M.Ps. are closed.