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Synopsis

The Jammu & Kashmir and Ladakh High Court has recently held that if an appeal doesn't involve a substantial question of law, the same cannot be entertained.

The bench of Justice Sanjay Dhar said that at the same time, the court has to ensure that the cases involving substantial questions of law are not to be rejected.

A substantial question of law would mean a question of law, that has not been finally settled by the courts, clarified the single judge bench.

“In case, settled law is misinterpreted or ignored by the Court below, it would give rise to a substantial question of law. The question of law, which has not been finally settled by the Court, would also be a substantial question of law and finally, if it is shown that question of law already settled needs reconsideration that would also give rise to a substantial question of law”, the judge said.

The court was hearing an appeal against two concurrent judgments of the trial court and appellate court who had dismissed the plaintiff’s suit whereby the appellant had sought a declaration that he was the tenant of Thara (space) measuring 72.59 sq.ft. located at Pharati Kho, a place enroute from Ban Ganga to Holy Shrine of Shri Mata Vaishno Devi Ji. The appellant had also sought a consequential relief of permanent prohibitory injunction restraining the defendant/respondent from forcibly evicting him from the aforesaid Thara.

Court said that the question as to whether a relationship between two parties is that of a landlord and tenant or licensor and licensee depends upon the facts and circumstances of the case and it does not depend upon the use of expression in the documents/receipts that may have been executed by the parties. “The nature of the transaction between the parties is the determinative factor for ascertaining whether such transaction is lease or a license”, it added.

Proceedings before Trial Court

Before the trial court, the appellant had claimed that he was the tenant of the suit space and that initially he was tenant of Dharmarth Trust. It was the case of the plaintiff/appellant that he was conducting the business of sale and manufacture from the demised space and when in the year, 1986, the Shri Mata Vaishno Devi Shrine Act was enacted, the tenants including the plaintiff under the Dharmarth Trust became the tenants of the Shrine Board.

The trial court concluded that the appellant had not been able to prove that he was a tenant of the premises/space. It was further concluded that no interest was ever created in favour of the appellant by the defendant in respect of the property in question and he was only given permission to make use of the route from Darshani Deodi up to Bhawan of Mata Vaishno Devi Ji for selling Barf Malai.

Proceedings before 1st Appellate Court

The 1st appellate court vide its impugned judgment dated November 24, 2018 concurred with the findings of the trial court and concluded that the plaintiff had miserably failed to prove that he was inducted as tenant in the suit property or that he was treated as a tenant by the defendant-Board.

It further observed that only inference that could be drawn qs that the plaintiff was a licensee of the suit property. With these findings, the 1st appellate court had dismissed the appeal of the plaintiff/appellant.

Present Case

Counsel for the appellant contended that the respondent Board withheld the documents relating to the transaction between the parties and that had these documents been produced by them, it would have come to the fore that the relationship between the appellant and the Dharamarth Trust was that of a tenant and the landlord and the similar relationship continued between the appellant and the respondent-Board.

The court took note of the statement of the Chief Executive Officer of the respondent-Board, wherein he clearly stated that as per the record, the plaintiff was granted the license for Dharamarth Trust for a period of six months for selling Barf Malai from Darshani Deodi to Bhawan of Mata Vaishno Devi Ji and the license fee was to be paid by the licensee to the licensor.

It also noted that the plaintiff was never a tenant and never became the tenant of the respondent-Board. “He has clarified that only permission was granted to the plaintiff to sell Malai Barf on the route. According to him in the year, 1977, tenders were invited for grant of license for six months and this included grant of license for selling Malai Barf from Darshani Deodi to Bhawan of Mata Vaishno Devi Ji. It is in pursuance to this tender notice, the plaintiff has been granted the license for selling Malai Barf. There is nothing in the cross examination of the witness to discredit his statement”, the court noted.

It was the appellant’s case that the trial court was not right in refusing the decree of permanent prohibitory injunction in his favour. He also contended that having regard to the settled possession over the suit space, he could only be evicted from there by adopting “due process of law” and “not by use of force”.

The single-judge bench said that in the instant case, the action was brought to the court by the appellant/plaintiff, and after full dressed trial, the trial court found that the status of the plaintiff/appellant was that of a licensee and after the expiry of license his status was reduced to that of an “unauthorized occupant”. “This finding has been upheld by the 1st appellate court”, it noted.

Court said that the rights of the parties had been determined by the competent court after a full dressed trial meaning that due process of law had been followed in the instant case.

In view of the clear position of the law on this issue, the court opined that no question of law much less a substantial question of law arose in this case on this aspect of the matter as well.

“The contents of the judgment passed by the appellate court would show that the Court has applied its mind to the facts and drawn its independent conclusion on the basis of applicable law after formulating the points for determination. The judgment of the 1st appellate court demonstrates substantial compliance to Order 41 Rule 31 CPC and no prejudice can be said to have been caused to the other side”, the court said.

Furthermore, the court said that the trial court as well as the 1st appellate court, had passed well-reasoned judgments after rendering findings on each issue after proper application of mind and appreciation of evidence on record. There was neither misreading of relevant evidence nor inadmissible evidence had been considered.

“Therefore, this Court is not inclined to interfere with and upset the findings of the facts in the judgments and decrees of the courts below in dismissing the suit of the appellant”, the court held.

Case Title: Madan Lal v. Shri Mata Vaishno Devi Shrine Board