Smt. M.M. Amonkar & Ors Vs.
Dr.S.A.Johari [1984] INSC 40 (21 February 1984)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
MUKHARJI, SABYASACHI (J)
CITATION: 1984 AIR 931 1984 SCR (2) 646 1984
SCC (2) 354 1984 SCALE (1)381
CITATOR INFO :
R 1987 SC 117 (20)
ACT:
Constitution of India, 1950, Article 227
Scope of- Justification of interference with a concurrent finding of fact
recorded by both the lower courts in respect of the nature of occupation of
premises by the lessee and in favour of the lessor by the High Court-Whether
the lessee of the cabin a "protected licensee under the Bombay Rent Act
(No. 57 of 1947) as amended by the Maharashtra Act XVII of 1973.
HEADNOTE:
The Respondent original plaintiff-a doctor by
profession was in occupation of a small cabin (admeasuring approximately 175 sq
ft) which is a part of the premises of Dr. Amonkar hospital of which the
appellants are the proprietors. The Life Insurance Corporation of India is the
owner of the building. The appellants threatened the Respondents to evict him
after issuing a notice dated March 20, 1973 informing the Respondent that his
attachment as Honorary Surgeon was no longer required with effect from 1-
4-1973 and that he should make his own arrangements for his private
consultation. The Respondent filed a suit in the Small Causes Court of Bombay
seeking a declaration that he was a "protected licensee" (having
become a deemed tenant) of the suit premises under section 15A of the Bombay
Rent Act (Act 57 of 1947) as amended by the Maharashtra Act XVII of 1973 and
for injunction restraining the appellant- defendants from taking forcible
possession of the suit premises and or disturbing or interfering with his use
and employment thereof otherwise than in due course of law. The suit was
resisted by the appellant-defendants on three grounds: (a) that the cabin was
never given to the respondent-defendant on leave and licence basis, that he was
never in exclusive use and occupation thereof but the user of the cabin was
given to him because of his attachment as Honorary Surgeon to Dr. Amonkar
hospital through the good offices of one Dr. Rawalia and after obtaining a
writing an stamp paper reflecting the true nature and character of the
arrangement between the appellants and the Respondent plaintiff;(b) that the
cabin in question was not "premises" within the meaning of Section
5(8)(b) of the Rent Act, in as much as the same could not be said to have been
given on licence "separately" because the respondent plaintiff was
permitted the user thereof only for 2-/2 hours in the evening on week days
between 5 P.M. and 7.30 P.M. and for the rest of the time it was being used by
the hospital staff and that one of the Key's of that cabin always remained with
the staff of the hospital and hence 647 disentitling to any protection of the
Rent Act, and (c) that the cabin in question being admittedly" a room in
the hospital" fell within the exclusionary part of the definition of the
"licensee" given section 5(4A) and as such was outside the protection
conferred on licensees by section 15A of the Rent Act.
The appellants also filed an Ejection
Application against the respondent plaintiff seeking his eviction from the suit
premises under section 41 of the Presidency Small Causes Courts Act on the
ground that the respondent's right to occupy the suit cabin had come to an end
along with the termination of his attachment as Honorary Surgeon to Dr. Amonkar
hospital. The respondent plaintiff resisted the said suit. Both the suits were
therefore heard together and common evidence recorded. On an appreciation of
the oral and documentary evidence and the surrounding circumstances, the trial
court came to the conclusion that the. user of the suit cabin had been
permitted to the respondent-plaintiff not on leave and licence basis but because
of his attachment as Honorary Surgeon to Dr. Amonkar Hospital and that Ex. No. 1
which was signed by him after fully realising its implications, was a genuine
writing reflecting the true nature of the arrangement between the parties and
so as such the respondent plaintiff was not entitled to the protection of
section 15A of the Rent Act and that with the termination of his attachment as
Honorary Surgeon to Dr. Amonkar hospital his right to occupy the suit cabin
came to an end.
The Trial Judge decreed the suit. In appeal
preferred by the respondent-plaintiff, the Appellate Bench of the Small Causes
Court on reappraisal of the entire material on record confirmed the findings of
the trial court both on the factual and on legal issued and dismissed the appeal.
The respondent-plaintiff when approached the High Court under Article 227 of
the Constitution the High Court interfered with the concurrent findings of fact
found by the two lower courts and reversed the decisions both on the factual
issue and the two legal issues. Hence the appeal after obtaining the special
leave of the Court.
Allowing the appeals, the Court
HELD: 1. The High Court was not right in
reversing the concurrent finding of fact recorded by both the courts below and
even on merits, the High Court Judgment cannot be sustained. [663 C] 2.1. The
opinion of the High Court that there were two disturbing features revealed in
the respective proceedings and judgments of the courts below which were
suggestive or non-judicial approach, some bias and partiality (in favour of the
appellant defendants and against the respondent- plaintiff) on their part which
necessitated a full and unrestricted exercise of its power of superintendence
by going to the extent of re-appreciating the evidence in depth as if it were a
first Appellate Court was not rect. [653 F- G] The comments of the High Court
that the rejection of an application to recall one of the witnesses viz. Dr.
Rawalia and to direct him to produce his Income Tax 648 Returns by the trial
court on 18-10-1976 was a disturbing feature suggestive of non-judicial
approach, some bias or some partiality shown by the Trial Judge, would have had
been simply dismissed without giving any reason but the learned trial Judge
passed a lengthy order giving three reasons for the rejection of the
application: (a) that vague averments were made in the application about the
receipt of the: information regarding Income Tax Returns of Dr. Rawalia on 8th
October, 1976 without the occasion for receiving the information or the source
of information being indicated and that when the Court made a query in that
behalf his counsel was not willing to give particulars or disclose the, source
of information and it was, therefore, difficult to believe that the
respondent-plaintiff came in possession of the said information after the
cross-examination of the witness was over and after the closure of
appellant-defendants' case;
(b) that under section 138(I)(b) of the
Income Tax Act, 1961 the respondent-plaintiff could have and should have
obtained the necessary information or material from the Commissioner of
Income-tax by making an application in the prescribed form and since he had not
done so it would not be proper to help him to get. the information through the
court; in other words, if he had attempted and failed to get the information by
following the prescribed procedure the court could have helped him; and (c)
that the Court's power to recall and examine any witness at any stage of the
suit under Order XVIII Rule 17 of CPC on which strong reliance was placed by
counsel for the respondent-plaintiff was to be exercised in exceptional
circumstances and no exceptional circumstance had been made out by the
respondent-plaintiff inasmuch as these documents would have become available to
him before he started the witness's cross-examination. May be in the exercise
its discretion another Court might have taken a different view and allowed the
application. But unless the reasons given by the learned trial Judge could be
said to be moon-shine, flimsy or irrational the rejection of the application
cannot be dubbed as suggestive of non-judicial approach or bias or partiality
on his part. It is also possible that the reasons for giving a ruling on a
point or for rejecting an application may be wrong or disclose a non- judicious
exercise of discretion and open to correction in appeal, but non motive of
non-judicial approach or bias or partiality could be attributed unless the
reason given are moon-shire or so flimsy or irrational that there are unreal.
Considered dispassionately, such a thing
could never be said about the reasons given by the trial Judge for rejecting
the application. In any case, the rejection of the application could not be
regarded as having stemmed from any oblique motive purpose. [656B-H, 657 A-C]
Further, the so called disturbing feature noted by the High Court in the
Judgment of the First Appellate Court is so innocuous and inconsequential that
it could hardly afford any justification to re-appreciate the whole evidence as
done by it. on the contrary, the broad features emerging from the evidence on
record clearly support the appellant- defendants' case that the user of the
suit cabin was allowed to the respondent-plaintiff not on leave and licence
basis but because of his attachment as Honorary surgeon to Dr. Amonkar
hospital. [663. B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 104- 105 of 1981 Appeals by Special leave from the Judgment and order
dated 649 the 18th August, 1980 of the Bombay High Court in Writ Petition Nos.
30 and 115 of 1979.
V.M. Tarkunde, P.H. Parekh, Mrs. Manik
Karanjewal and Miss Indu Malhotra for the Appellants.
Anil Dewan, Dalveer Bhandari and R.S. Yadav
for the Respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J. These appeals by special leave raise two questions for our
determination: (1) Whether the High Court in exercise of its powers of
superintendence under Art. 227 was justified in interfering with a concurrent
finding of fact recorded by both the lower Courts in favour of the appellants?
and (2) Whether the respondent was a protected licensee in respect of the suit
premises under the Bombay Rent Act (No. 57 of 1947) as amended by the
Maharashtra Act XVII of 1973? This unfortunate litigation between eminent
medical practitioners of Bombay has been hotly contested before us since it
relates to professional accommodation of which there is great dearth in that
city. The accommodation in question consists of a small cabin admeasuring
15'-6"x11'-2" (approximately 175 sq. ft) which is a part of the
premises of Dr. Amonkar Hospital located on the fourth floor of Bombay Mutual
Terrace at 534, Sandhurst Bridge, Bombay, of which one Dr. M.D. Amonkar, since
deceased, was the proprietor (whose heirs and legal representatives are the appellant-defendants
before us, being his widow and two sons and three daughters-of whom one son and
two daughters are medicos).
Dr. Johari (the respondent-plaintiff) an
M.B.B.S. of Bombay, F.R.C.S. of London and Edinburough and Honourary Surgeon
attached to G.T. Hospital and Bombay Hospital, filed a suit (R.A. Suit 650 No.
779/2893 of 1973) in the Small Causes Court at Bombay seeking a declaration
that he was a "protected licensee'.(having become a deemed tenant) of the
suit premises under s. 15A of the Bombay Rent Act (No. 57 of 1947) as amended
by the Maharashtra Act XVII of 1973 and for injunction restraining the
appellant-defendants from taking forcible possession of the suit premises and
or disturbing or interfering with his use and enjoyment thereof otherwise than
in due course of law. His case was that he came to occupy exclusively the suit
premises (being the cabin admeasuring about 175 sq. ft. with the facility of
using the adjacent common waiting room together with the facility of water and
electricity) on Ist May, 1970 on leave. and licence basis under an oral
agreement with late Dr. Amonkar on payment of monthly compensation of Rs. 201
for doing his private consultation surgical practice. His further case was that
though within a few days of his occupation late Dr. Amonkar had obtained from
him a writing purporting to state that he was attached as an Honourary Surgeon
to Dr. Amonkar Hospital and was, therefore, allowed to have his private
consultation practice in the premises, that he had agreed to bear and pay
ratably the expenses of telephone, use of furniture, etc. and that he was
neither a tenant nor a licensee, the said writing had been obtained from him
merely as a safeguard for Dr. Amonkar against a possible objection that might
be raised by the Life Insurance Corporation the landlords of the building, and
was not to be acted upon.
According to him, he had cordial relations
with late Dr. Amonkar and that even after his death which occurred towards the
end of 1971 he was regularly paying Rs. 201/- per month to his heirs till
January 1973 but since threats of forcible dispossession were held out to him
by the appellant- defendants, particularly by appellant-defendant No. 3 Dr. Suman
Gaitondey (the married daughter of the deceased) on her return to Bombay from
Calcutta, and since by a notice dated 20th March, 1973 he was informed that his
attachment as honorary Surgeon was no longer required with effect from 1-4-1973
and that he should make his own arrangements for his private consultation, he was
forced to file the suit seeking reliefs of a declaration and injunction
mentioned above.
The suit was resisted by the
appellant-defendants on three grounds: (a) that the cabin was never given to
the respondent-plaintiff on leave and licence basis as alleged by him, that he
was never in exclusive use and occupation thereof but the user of the cabin was
given 651 to him because of his attachment as Honourary Surgeon to Dr. Amonkar
Hospital, through the good offices of one Dr. Rawalia; that the writing on the
stamp paper of Rs. 1.50 bearing date 4th May, 1970 signed by the respondent-
plaintiff reflected the true nature and character of the arrangement between
the parties; it was emphatically denied that the said writing was obtained by
late Dr. Amonkar for the purpose or motive suggested by the
respondent-plaintiff or was not intended to be acted upon, (b) that the cabin
in question was not "premises" within the meaning of s. 5 (8) (b) of
the Act, inasmuch as the same could not be said to have been given on licence
'separately' because the respondent-plaintiff was permitted the user there of
only for 2-1/2 hrs. in the evening on week days between 5.00 p.m.
to 7.30 p.m. and for the rest of the time it
was being used by the hospital staff and that one of the keys of that cabin
always remained with the staff of the hospital and hence the plaintiff was not
entitled to any protection of the Rent Act; and (c) that the cabin in question
being admittedly 'a room in the hospital' fell within the exclusionary part of
the definition of the licensee' given in s. 5 (4A) and as such was outside the
protection conferred on licensees by s. 15A of the Act.
It may be stated that while the aforesaid
suit was pending the appellant-defendants on their part filed an eviction petition
being ejectment Application No. 259/E of 1976 against the plaintiff respondent
seeking his eviction from the suit premises under s. 41 of the Presidency Small
Causes Courts Act on the ground that the plaintiff's right to occupy the suit
cabin had come to an end along with the termination of his attachment as
Honourary Surgeon to Dr. Amonkar Hospital and the plaintiff resisted the said
eviction on the ground that he was a protected licensee under the Bombay Rent
Act as amended by the Maharashtra Act XVII of 1973 and was, therefore, not
liable to be evicted there from. The two proceedings were heard together and
common evidence was recorded in the declaratory suit being R.A. No. 779/2893 of
1973.
It is clear that on the basis of the rival
pleadings of the two parties in the two proceedings before the Small Causes
Court principally three issues arose for determination, namely, (1) what was
the true nature of the arrangement between the parties regarding the user of
the suit cabin by the plaintiff, whether the plaintiff's user of the cabin was
on leave and licence basis on payment of monthly compensation or it 652 was on
account of his attachment as Honourary Surgeon to Dr.
Amonkar Hospital? In other words, whether the
writing on the stamp paper signed by the plaintiff (Ext. No. 1) was a genuine
document reflecting the true nature of the arrangement between the parties? (2)
whether the suit cabin was not 'premises' within the meaning of s. 5 (8)(b) of
the Act? and (3) whether the suit cabin was a room in the hospital' falling
within the exclusionary part of the definition of 'licensee' under 5 (4A) and,
therefore, outside the protection contemplated by s. 15A of the Act? It is
obvious that the first issue raised purely a question of fact, the determination
whereof depended on appreciation of the evidence led by the parties before the
Court while the other two issues raised questions of law-rather mixed questions
of law and fact.
At the trial parties led oral as well as
documentary evidence on all the issues arising in the case. The evidence on the
side of the respondent-plaintiff consisted only of his oral testimony, during
the course of which he asserted that the user of the cabin had been given to
him by late Dr. Amonkar on leave and licence basis on payment of monthly
compensation. On the side of the appellant-defendants the oral testimony
consisted of depositions of two witnesses (i) Dr. D.M. Amonkar (defendant No.
2) and (ii) Dr. Rawalia and the documentary evidence consisted of two writings
obtained by late Dr. Amonkar-one from the respondent-plaintiff and the other
from Dr. Rawalia. Ext. No. 1 is a writing on a stamp paper of Rs. 1.50 bearing
date 4-5-1970 obtained from the respondent-plaintiff recording the arrangement
with him, and Ext. No. 2 is a writing on a stamp paper dt, 23-4-1962 signed by
Dr. Rawalia recording the arrangement with him.
Both Exts. No. 1 and No. 2 are identical in
terms and appears that long before respondent-plaintiff was allowed the use of
the suit cabin, Dr. Rawalia had been allowed the use of another cabin in the
hospital premises by late Dr. Amonkar on the same terms. Each writing signed by
the occupant in terms states, "I am an Hon. Surgeon to Dr. Amonkar
Hospital. I am allowed to practice may, private consultation in the premises. I
am neither licensee nor subtenant. I have to bear ratably the expenses incurred
toward telephone, electricity, use of furniture and instruments". Dr.
Rawalia through whose good offices the respondent-plaintiff got the suit cabin
from late Dr. Amonkar fully supported the appellant defendants' case that late
Dr. Amonkar had permitted the respondent-plain- 653 tiff to make use of the
suit cabin because of his-attachment as Honorary Surgeon to Dr. Amonkar
Hospital. On an appreciation of the oral and documentary evidence and the
surrounding circumstances, the trial Court came to the conclusion that the user
of the suit cabin had been permitted to the respondent-plaintiff not on leave
and licence basis but because of his attachment as Honorary Surgeon to Dr.
Amonkar Hospital and that Ext. No. 1 which was signed by him after fully
realising its implications, was a genuine writing reflecting the true nature of
the arrangement between the parties and as such the plaintiff was not entitled
to the protection of s. 15A of the Rent Act and with the termination of his
attachment as Honourary Surgeon to Dr. Amonkar Hospital his right to occupy the
suit cabin came to end. The trial Court also decided the legal issues in
appellant-defendants' favour with the result that the respondent-plaintiff's
declaratory suit was dismissed and the ejectment application of the
appellant-defendants was decreed. In appeal preferred by the
respondent-plaintiff the Appellate Bench of the Small Causes Court on a re-
appraisal of the entire material on record confirmed the findings of the trial
Court on the factual issue as also on the legal issues. The appeal was
dismissed and the ejectment decree passed by the Trial Court in favour of the
appellant- defendants was confirmed Against the dismissal of his declaratory
suit and the ejectment decree passed in E.A. No. 259/F of 1976 the
respondent-plaintiff approached the High Court under Art, 227 of the
Constitution by preferring two proceedings- Special Civil Application No. 30 of
1979 and Writ Petition No-115 of 1979 both of which were disposed of by the
High Court by common judgment rendered on 18th August, 1980. The High Court was
of the opinion that there were two disturbing features revealed in the
respective proccedings/judgements of the Courts below which were suggestive of
non-judicial approach, some bias and partiality (in favour of the
appellant-defendants and against the respondent-plaintiff) on their part which
necessitated a full and unrestricted exercise of its power of superintendence
by going to the extent of re-appreciating the evidence in depth as if it were a
first Appellate Court; and after briefly indicating what it felt were the two
disturbing features, the High Court re-appreciated the entire evidence fully
and in depth and came to the conclusion that the user of the suit cabin was
given to the respondent-plaintiff on leave and licence basis and the writing
Ext. No. 1 did not represent the real state of affairs as far as the
respondent-plaintiff's right to use the suit cabin was concerned and that the
same had been taken by late Dr. Amonkar only 654 for his protection against his
own landlord, namely, Life Insurance Corporation. The High Court also negatived
the findings recorded by the Courts below on the two legal issues and held that
the suit cabin was "premises" within the meaning of s. 5 (8) (b) of
the Bombay Rent Act, the same having been given on licence `separately' to the
respondent- plaintiff and that the suit cabin was not `a room in the hospital'
and as such the respondent-plaintiff could be and was a `protected licensee'
entitled to claim protection under s. 15A of the Act. The High Court's
interference with the concurrent finding of fact recorded by the two Courts
below on the factual issue also its conclusions on the two legal issues are
assailed before us in the instant appeals.
The first contention urged by counsel for the
appellant-defendants is that the question whether the user of the suit cabin
had been allowed to the respondent- plaintiff on leave and licence basis or
because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital and
whether the writing Ext. No. 1 was a genuine document and reflected the true
nature of the arrangement between the parties or not was purely a question of
fact depending upon the evidence led by the parties and it was on an
appreciation of the oral and documentary evidence and the surrounding
circumstances that both the lower Courts had come to the conclusion that the
respondent-plaintiff's occupation of the suit cabin was not on leave and
licence basis but on account of his attachment as an Honourary Surgeon to Dr.
Amonkar Hospital and that the writing Ext. No. 1 was not any camouflage or
facade obtained by late Dr. Amonkar for the purpose suggested by the respondent-
plaintiff but was a genuine document which reflected the real arrangement
between the parties and such a concurrent finding of fact, unless it was
perverse, which it was not because there was ample evidence on record to
support it, could not be interfered with by the High Court under Art.
227. Counsel further urged that the
justification given by the High Court for interfering with such concurrent
finding of fact was unsustainable inasmuch as the so-called two disturbing
features were not really any disturbing features much less were they suggestive
of any non-judicial approach or some bias or partiality on the part of the
lower Courts in favour of the appellant-defendants and against the
respondent-plaintiff. Council strongly urged that the suggestion of
non-judicial approach or of bias or of partiality on the part of the learned
single Judge and the two learned Judges of the Appellate Bench of the Court of
Small Causes was unwarranted, uncalled for and ought not to have been made.
Even on merits the High 655 Court's view on the factual issue was wrong. It was
also contended that evidence clearly showed that the suit cabin had not been
`separately' given to the respondent-plaintiff and in any case it was `a room
in the hospital' and as such the respondent-plaintiff was not entitled to claim
any protection of the Bombay Rent Act. On the other hand, counsel for the
respondent-plaintiff supported the High Court's findings on all the issues-and
urged that there was no reason to disturb the judgment under appeal.
This necessitates a close scrutiny of the two
disturbing features-one pertaining to the proceeding before the trial Court and
the other pertaining to the judgment of the Appellate Bench-which according to
the High Court made it to undertake a re-appreciation of the entire evidence in
depth as if it were a first appellate Court. In the trial Court after examining
their two witnesses the appellant- defendants closed their case on 18th
September, 1976 and the case was fixed for arguments on 4th of October, 1976,
on which day, however, arguments could not be heard and the matter was
adjourned. It appears that on 18th September, 1976 during the course of his
cross-examination it was suggested to Dr. Rawalia that in his Income-Tax
Returns he had been showing payment of Rs. 225 per month to Dr. Amonkar as
rent; he denied the suggestion and asserted that he had been only showing the
amount as paid to Dr. Amonkar. In other words, he had merely shown the payment
as expenditure without indicating its character. On 12th of October, 1976 the
respondent-plaintiff made an application stating that on 8th October, 1976, he
had come to know that Dr. Rawalia had filed his Income Tax Returns showing that
he had paid Rs. 1870 as rent for 1972-73, Rs. 2250 as rent for 1973-74 and Rs.
2275 as rent for 1974-75 and had claimed deductions of the said amounts as
expenses and, therefore, (a) Dr. Rawalia be recalled for further
cross-examination and (b) that his Income Tax Returns for the said three years
be got produced through a witness summons or letter of request being issued to
the Commissioner of Income Tax. Bombay. Obviously, the application was made
with a view to confront Dr. Rawalia by his own Income Tax Returns which he had
filed for proving (i) that Dr. Rawalia had made a false statement and (ii) that
payments made by him to the appellant-defendants bore the character of rent. It
cannot be disputed that the aspects sought to be proved by recalling Dr.
Rawalia and by getting his Income Tax Returns produced were relevant to the
issue involved in the case, though it is well-settled that a particular
nomenclature given to payments made by a party is not conclusive or decisive of
the matter. The application was 656 dismissed by the learned trial Judge on
18th of October, 1976 and according to the High Court this rejection of the
application was a disturbing feature suggestive of a non- judicial approach,
some bias or some partiality in favour of the appellant-defendants on the part
of the learned trial Judge. In our view the comments of the High Court in the
matter of rejection of this application would have had some force if the
application had been simply dismissed without giving any reasons but the
learned trial Judge passed a lengthy order giving three reasons for the rejection
of the application: (a) that vague averments were made in the application about
the receipt of the information regarding Income Tax Returns of Dr. Rawalia on
8th October, 1976 without the occasion for receiving the information or the
source of information being indicated and that when the Court made a query in
that behalf his counsel was not willing to give particulars or disclose the
source of information and it was, therefore, difficult to believe that the
respondent-plaintiff came in possession of the said information after the
cross-examination of witness was over and after the closure of
appellant-defendants' case; (b) that under s. 138 (1) (b) of the Income Tax
Act, 1961 the respondent-plaintiff could have and should have obtained the
necessary information or material from the Commissioner of Income Tax by making
an application in the prescribed form and since he had not done so it would not
be proper to help him to get the information through the Court; in other words,
if he had attempted and failed to get the information by following the
prescribed procedure the Court could have helped him; and (c) that the Court's
power to recall and examine any witness at any stage of the suit under Order
XVIII Rule 17 of C.P.C., on which strong reliance was placed by Counsel for the
respondent-plaintiff was to be exercised in exceptional circumstances and no
exceptional circumstance had been made out by the respondent-plaintiff inasmuch
as these documents would have become available to him before he started the witness's
cross-examination. May be in the exercise of its discretion another Court might
have taken a different view and allowed the application. But unless the reasons
given by the learned trial Judge could be said to be moon-shine, flimsy or
irrational the rejection of the application cannot be dubbed as suggestive of
non-judicial approach or bias or partiality on his part. It is also possible
that the reasons for giving a ruling on a point or for rejecting an application
may be wrong or disclose a non- judicious exercise of discretion and open to
correction in appeal, but no motive of a non-judicial approach or bias or
partiality could be attributed unless, as we have said above, the reasons given
are moon shine or so flimsy or irrational that they are unreal. Considered
dispassionately, such a thing can never be said 657 about the reasons given by
the trial Judge for rejecting the application. It is true that the appellate
Court has not dealt with this point though in ground No. 27 of the Memo.
of Appeal a point had been taken that the
application had been wrongly rejected but in all probability it was not argued
by counsel otherwise the appellate Court would have dealt with it. In the High
Court no assertion was made that the point was actually argued or pressed
before the Appellate Bench but it was merely urged that although a complaint
against the rejection of the application had been made in Ground No. 27 of the
Memo of Appeal the appellate Court has not dealt with it. This also shows that
the rejection was not regarded by the respondent-plaintiff or his counsel
before the appellate Court as any serious or disturbing feature. In any case,
as stated earlier, the rejection of the application could not be regarded as
having stemmed from any oblique motive or purpose. This so-called disturbing
feature; therefore, did not afford any justification to the High Court to
undertake a re- appreciation of the entire evidence in depth for reversing a
concurrent finding of fact recorded by the two Courts below.
Turning to the judgment of the Appellate
Court, the so- called disturbing feature noted by the High Court, is, in our
view, so innocuous and inconsequential that it could hardly afford any
justification to re-appreciate the whole evidence as done by it. It appears
that during the hearing of the appeal after supporting the trial Court's
finding on the factual issue as also the findings on the legal issues and
pressing for their acceptance, counsel for the appellant-defendants put forward
an alternative last submission that even proceeding on the assumption that an
oral licence had been created in respondent-plaintiff's favour by late Dr.
Amonkar, as alleged by him, the material on record showed that the said licence
did not subsist on the relevant date, namely, 1-2-1973, mentioned in s. 15A
and, therefore, he was not entitled to any protection under the Act, and in
that behalf an averment made by the respondent-plaintiff in paragraph 4 of his
complaint dated 24-3-1973 addressed to the Inspector of Police, Gamdevi Police
Station was relied, which averment runs thus: "Ever since there has been a
publicity in the newspaper that the Govt. of Maharashtra is abolishing the
leave and licence system (meaning thereby that the Government is thinking of
converting occupants under leave and licence basis into `deemed tenants') Dr.
(Miss) Usha Amonkar and Dr. D.M. Amonkar are asking him to vacate the
premises", and the contention was that since the Bill amending the Bombay
Rent Act (subsequently numbered as Act XVII of 1973) had been introduced or
published in 658 August, 1972 the respondent-plaintiff's licence, on his own
aforesaid averment, was not subsisting and had come to an end long before
1-2-1973. The appellate Court accepted this argument on the footing that the
Bill had been introduced (not in the Assembly) in newspapers for information to
the public in August 1972 and held that the respondent- plaintiff's licence, if
any, was not subsisting on 1st of February, 1973 and he was not
entitled to protection even if his case were assumed to be true. According to
the High Court such a conclusion drawn by the appellate Bench was an impossible
one having regard to the pleadings and the evidence on record, for, according
to the High Court, it was by notice dated 20th March, 1973, issued by the widow
of late Dr. Amonkar that the respondent-plaintiff was categorically told that
he should make alternative arrangement for his consultation practice elsewhere
with effect from 1-4-1973 which showed that his licence was terminated with effect
from date. It must however be borne in mind that what was terminated by the
notice dated 20th March, 1973 was the respondent-plaintiff's attachment as an
Honourary Surgeon to Dr. Amonkar Hospital and not his licence. In fact, it was
never the case of the appellant- defendants that the respondent-plaintiff was a
licensee and, therefore, neither their pleading nor their notice could be used
for showing that the respondent-plaintiff's licence continued upto 1st of
April, 1973. The appellate Court while accepting the alternative submission was
proceeding on the assumption that the respondent-plaintiff's occupation was as
a licensee and on that basis it considered what would be the effect of the
averment made by him in para 4 of his complaint which suggested that his oral
licence had been terminated by being asked to vacate the cabin long before 1-
2-1973. Now in the first place assuming that the appellate Court's conclusion
in that behalf was not justified on the evidence on record the same could at
the highest be regarded as a wrong conclusion but it is impossible to say that
it was suggestive of a non-judicial approach or bias or partiality on its part.
Secondly, it amounted to acceptance of the alternative contention on an assumed
basis after the appellate Court had already, on a re-appraisal of the entire
material in the case, recorded its finding on the factual issue in agreement
with the trial Court in favour of the appellant-defendants. In other words the
conclusion on the alternative submission was not merely innocuous i.e. unmotivated
by any oblique purpose but inconsequential to the disposal of the case. Having
regard to the above discussion we are clearly of the view there was no
justification for the High Court to undertake a re- appreciation of the evidence
and it ought not to have interfered with the concurrent finding of fact
recorded by the two Courts below on the factual issue arising in the case.
659 Though the aforesaid conclusion of ours
would be sufficient to dispose of the appeals, even on merits we feel that the
broad features emerging from the evidence on record make it difficult to accept
the respondent-plaintiff's case that the user of the suit cabin was permitted
to him on leave and licence basis as claimed by him. Admittedly, Dr. Amonkar
Hospital was never exclusively a Maternity and Gynecological Hospital and had a
Nursing Home Department where general operations were undertaken and as such
attachment of couple of doctors as Honourary Surgeons to it would be most
natural and since at the material time both the senior Dr. Amonkar (since
deceased) and the junior Dr. Amonkar (defendant No. 2) were on account of their
ill health, unable to work with full vigour, with only doctors (Dr. Miss Usha
Amonkar and Dr. Rawalia) in attendance the respondent-plaintiff's attachment as
Honourary Surgeon to it for temporary duration till Dr. (Mrs.) Gaitonde
returned from Calcutta, could not be said to be unnecessary as opined by the
High Court but was more probable. Even the High Court has observed that late
Dr. Amonkar had obliged the respondent-plaintiff by accommodating him in the
suit cabin temporarily when he was suddenly made to leave his premises on the
third floor of the very building and that the respondent-plaintiff had taken
advantage of the gesture shown to him by late Dr. Amonkar as Dr. (Mrs.)
Gaitonde was away at Calcutta.
Secondly, even the High Court has accepted
the position that the user of the suit cabin became available to the
respondent-plaintiff as a result of his direct approach to late Dr. Amonkar but
through the intervention and good offices of Dr. Rawalia, and he has fully
supported the Appellants-Defendants' case that such user was allowed to the
respondent-plaintiff on the same terms on which he had been permitted the user
of his cabin in that Hospital, namely, because of attachment as Honourary
Surgeon to Dr. Amonkar Hospital. But Dr. Rawalia's evidence has been discarded
by the High Court for reasons which are, in our view, not sound. Apart from
some minor contradictions (which were really omissions) that appeared in his
evidence in light of the averments made by him in his earlier Affidavits filed
in the proceedings, the main reason for discarding his evidence has been that
he could not be regarded as disinterested witness because of his close ties
with the Amonkar family and that he had displayed an attitude of being ever
willing to sign any affidavit or to swear to anything to help whom he had come
to help; for instance he had gone to the extent of saying "so far I am not
asked to go out but I am prepared to go as and when they will tell me to get
out", which showed that 660 he had identified himself with Amonkars. In
our view these aspects would not be good reasons for discarding his evidence.
True, some of his answers do show that he was having close ties with the
Amonkar family but this is not unnatural if it is borne in mind that he has
been working with them in that Hospital since 1954 and the mere fact that he
has stated that he was prepared to go whenever Amonkars would ask him to go
would not show that there was any private or secret-understanding between him
and Amonkars as was sought to be suggested by counsel for the respondent-
plaintiff. Since he was a signatory to writing Exh. No. 2 all that he wanted to
convery was that his user of the cabin was because of his attachment as
Honourary Surgeon to Dr. Amonkar Hospital and as such his right to occupy the
cabin would come to an end as and when his attachment would cease, that is to
say, as and when Amonkars would ask him to go.
Far from showing any interestedness in the
Amonkars his aforesaid statement was an admission against his own interest, as
it exposed him to imminent risk of eviction, and as such deserved commendation.
Honouring one's word has become a rare virtue these days and it would become
rarer still if those who display it are to be discredited like this. To
disbelieve Dr. Rawalia who showed his willingness to honour his word by
sticking to the arrangement to which he was a signatory and for not behaving in
the manner as respondent-plaintiff has done, would be a travesty of justice.
Thirdly, turning to the documentary evidence,
it must be observed that the three or four receipt produced by the
respondent-plaintiff showing monthly payments made by him would be of no avail
because the nature or the character of the payment, whether it was by way of
compensation or towards ratable expenses, has no where been indicated in any of
them. But so far as Exh. No. 1 is concerned it is clear that this document in
terms indicates that the respondent- plaintiff was permitted to use the suit
cabin not on leave and licence basis but because of his attachment as Honourary
Surgeon to Dr. Amonkar Hospital and that it contains a categorical admission on
his part that he was neither a tenant nor a licensee thereof. In
cross-examination respondent-plaintiff admitted that he had signed this
document after fully understanding the contents thereof. If that be so, his
oral testimony which runs-counter to the document cannot obviously be accepted
unless, of course, the document is shown to have been obtained by late Dr.
Amonkar from him for the purpose of avoiding a possible objection that might be
raised by the L.I.C. and was not to be acted up.. ones suggested by the
respondent-plaintiff. As regards the motive or 661 purpose for which the
document was said to have been obtained there are two circumstances which
militate against it. In the first place at the material time that is in May
1970 unlawful subletting of premises was a ground for eviction and not the
giving it on leave and licence basis and late Dr. Amonkar might have faced some
difficulty from his own landlord, namely, L.I.C. if he had sublet the said
cabin to the respondent-plaintiff but at that time it could not be within the
contemplation of anybody to seek protection against giving premises on licence
also, and even so Ext. No. 1 in terms records that respondent-plaintiff was
neither a tenant nor a licensee of the suit cabin. Such a double protection was
unnecessary as against the L.I.C. but, it was necessary as against the
respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of
the cabin was allowed only in the capacity of an attached Honourary Surgeon to
the Hospital and in no other and that is what Ext. No. 1 says. In our view, the
motive suggested by the respondent-plaintiff does not fit in with the situation
or state of affairs that existed in May, 1970 and the document really records
the true transaction between the parties, namely, that the respondent-plaintiff
was allowed the user of the suit cabin because of his attachment as Honorary
Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to be acted
upon and it was signed by respondent- plaintiff on the representation made to
him by late Dr. Amonkar that it was simply for the purpose of protecting
himself against the L.I.C. and was not to be used against the
respondent-plaintiff, the respondent-plaintiff could have obtained from later
Dr. Amonkar a writing that effect which he could have preserved for his own
safety but no such writing was obtained by him from late Dr. Amonkar and, in
our view, if the respondent-plaintiff's version were true that Ext. No. 1 had
been obtained on the alleged representation two writings could have been executed
and preserved by each for his own safety but this was not done.
If, therefore, respondent-plaintiff's
suggestion as to why Ext. No. 1 was obtained by late Dr. Amonkar from him is
not believable-and for the reasons indicated above it is not-the respondent-plaintiff
must be held bound by the writing Ext. No. 1 which he executed after fully
understanding the contents thereof and his oral testimony that the user of the
cabin was given to him on leave and licence basis cannot be accepted.
It may be stated that the main reason why the
High Court felt that Ext. No. 1 did not reflect the true nature of the
transaction between the parties was that no documentary evidence was produced
by the appellant- defendants to show that actually medical services were 662
rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On this point
there was merely the respondent- plaintiff's word as against the testimony of
defendant No. 2 and Dr. Rawalia. Respondent-plaintiff claimed that he had not
rendered any services to Dr. Amonkar Hospital as an attached Honourary Surgeon
thereto while both the witness on the side of the appellant-defendants asserted
that consultations were held with the respondent-plaintiff whenever occasions
arose in maternity cases done in the Hospital. Leaving aside the High Court's
view about the unsatisfactory nature of evidence of Dr. Rawalia, there was no
reason why the evidence of defendant No. 2 (Junior Dr. Amonkar)-who had as per
the High Court's view given evidence in a responsible and restrained
manner-should not have been accepted on the point. Defendant No. 2 had clearly
stated in his evidence that consultations with the respondent- plaintiff were
held whenever preoperative or post-operative problems arose in maternity cases
and this was done at least 4 or 5 times a month and he was consulted in his
capacity as an Honorary Surgeon attached to the Hospital. It is true that no
documentary record of such consultations was produced but whether any record of
consultations would be maintained or not would depend upon the nature and type
of consultations made and it is equally possible that due to lapse of time that
had occurred between such consultations and the trial such record may not have
been preserved. In our view defendant No. 2's evidence in this behalf need not
have been rejected simply because no record of such consultations was produced.
Furthermore the respondent No. 2 admitted in his evidence that he had made use
of the Operation Theatre together with the facilities attached thereto of Dr.
Amonkar Hospital for performing operations on his private patients and though
there is a controversy as to whether such user of the Operation Theatre was
free of charge or on payment, in our view such user of Operation Theatre
together with the facilities attached thereto would not have been permitted to
respondent-plaintiff if he were an independent licensee of the suit cabin and
was not connected with and attached to the Hospital. Lastly, the evidence
clearly shows that right from commencement of his occupation of the suit cabin
till January 1973 (when the respondent-plaintiff obtained an interim
injunction) the respondent plaintiff had no servant of his own attached to the
suit cabin but he was getting the services from the members of the Hospital
staff in the matter of sweeping, cleaning and dusting of his cabin, receiving
his patients in the common waiting room and ushering them into his cabin for
which no separate payment was being made by him. Were he an independent
licensee of the suit cabin and not attached to the Hospital such services 663
would not have been made available to him free of charge.
In our view the aforesaid broad features
emerging from the evidence on record clearly support the appellants-
defendants' case that the user of the suit cabin was allowed to the
respondent-plaintiff not on leave and licence basis but because of his
attachment as Honourary Surgeon to Dr. Amonkar Hospital. Such being our
conclusion on the factual issue it is unnecessary for us to deal with or
discuss the other two semi-legal issues that were argued before us in these
appeals. We are clearly of the view that the High Court was not right in
reversing the concurrent finding of fact recorded by both the courts below and
even on merits the High Court judgment cannot be sustained. The appeals are
therefore allowed and the High Court judgment is set aside and the concurrent
finding of both the lower courts on the factual issue is restored. The
dismissal of the declaratory suit and the findings in the Ejectment Application
E.A. No. 259/E of 1976 are confirmed. Parties will bear their respective costs
throughout.
S.R. Appeals allowed.
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