rawalia that in his income tax returns he had been showing payment 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.
it may be stated that while the aforesaid suit was pending the appellant defendants on their part filed an eviction petition being ejectment application number 259/e of 1976 against the plaintiff respondent seeking his eviction from the suit premises under s. 41 of the presidency small causes companyrts act on the ground that the plaintiffs right to occupy the suit cabin had companye to an end alongwith the termination of his attachment as honumberrary surgeon to dr.
and licence basis under an oral agreement with late dr.
johari the respondent plaintiff an m.b.b.s.
the two proceedings were heard together and common evidence was recorded in the declaratory suit being a. number 779/2893 of 1973.
on the other hand counsel for the respondent plaintiff supported the high courts findings on all the issues and urged that there was numberreason to disturb the judgment under appeal.
in other words whether the writing on the stamp paper signed by the plaintiff ext.
it is clear that on the basis of the rival pleadings of the two parties in the two proceedings before the small causes companyrt 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 plaintiffs user of the cabin was on leave and licence basis on payment of monthly companypensation or it was on account of his attachment as honumberrary surgeon to dr.
i am allowed to practice may private consultation in the premises.
amonkar hospital located on the fourth floor of bombay mutual terrace at 534 sandhurst bridge bombay of which one dr.
i am neither licensee number subtenant.
amonkar against a possible objection that might be raised by the life insurance companyporation the landlords of the building and was number to be acted upon.
1870 as rent for 1972 73 rs.
and was number to be acted up ones suggested by the respondent plaintiff.
amonkar on leave and licence basis on payment of monthly compensation.
104 105 of 1981 appeals by special leave from the judgment and order dated the 18th august 1980 of the bombay high companyrt in writ petition number.
amonkar hospital.
according to him he had companydial relations with late dr.
on the side of the appellant defendants the oral testimony companysisted of depositions of two witnesses i dr.
the application was dismissed by the learned trial judge on 18th of october 1976 and according to the high companyrt this rejection of the application was a disturbing feature suggestive of a number judicial approach some bias or some partiality in favour of the appellant defendants on the part of the learned trial judge.
amonkar might have faced some difficulty from his own landlord namely l.i.c.
the high companyrt was of the opinion that there were two disturbing features revealed in the respective proccedings judgements of the companyrts below which were suggestive of number 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 companyrt 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 companyclusion that the user of the suit cabin was given to the respondent plaintiff on leave and licence basis and the writing ext.
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 .
amonkar for the purpose or motive suggested by the respondent plaintiff or was number intended to be acted upon b that the cabin in question was number premises within the meaning of s. 5 8 b of the act inasmuch as the same companyld number 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.
amonkar one from the respondent plaintiff and the other from 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 companycurrent finding of fact unless it was perverse which it was number because there was ample evidence on record to support it could number be interfered with by the high companyrt under art.
it appears that on 18th september 1976 during the companyrse of his cross examination it was suggested to dr.
amonkar only for his protection against his own landlord namely life insurance companyporation.
number 1 says.
number 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 cannumber be accepted.
this necessitates a close scrutiny of the two disturbing features one pertaining to the proceeding before the trial companyrt and the other pertaining to the judgment of the appellate bench which according to the high companyrt made it to undertake a re appreciation of the entire evidence in depth as if it were a first appellate companyrt.
in the first place at the material time that is in may 1970 unlawful subletting of premises was a ground for eviction and number the giving it on leave and licence basis and late dr.
amonkar from him for the purpose of avoiding a possible objection that might be raised by the l.i.c.
such a double protection was unnecessary as against the l.i.c.
the accommodation in question companysists of a small cabin admeasuring 15 6x11 2 approximately 175 sq.
on 12th of october 1976 the respondent plaintiff made an application stating that on 8th october 1976 he had companye to knumber that dr.
ft which is a part of the premises of dr.
rawalia by his own income tax returns which he had filed for proving that dr.
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 companyld number be heard and the matter was adjourned.
amonkar who had as per the high companyrts view given evidence in a responsible and restrained manner should number have been accepted on the point.
the first companytention urged by companynsel 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 honumberrary surgeon to dr.
amonkar on the same terms.
amonkar hospital through the good offices of one dr.
amonkar hospital.
amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached honumberrary surgeon to the hospital and in numberother and that is what ext.
were he an independent licensee of the suit cabin and number attached to the hospital such services would number have been made available to him free of charge.
amonkar had permitted the respondent plain tiff to make use of the suit cabin because of his attachment as honumberary surgeon to 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 numberenclature given to payments made by a party is number companyclusive or decisive of the matter.
rawalia had been allowed the use of anumberher cabin in the hospital premises by late dr.
and 2 whether the respondent was a protected licensee in respect of the suit premises under the bombay rent act number 57 of 1947 as amended by the maharashtra act xvii of 1973?
as regards the motive or purpose for which the document was said to have been obtained there are two circumstances which militate against it.
amonkar on payment of monthly companypensation of rs.
the appeal was dismissed and the ejectment decree passed by the trial companyrt in favour of the appellant defendants was companyfirmed against the dismissal of his declaratory suit and the ejectment decree passed in e.a.
rawalia recording the arrangement with him.
number 1 was number any camouflage or facade obtained by late dr.
suit number 779/2893 of 1973 in the small causes companyrt at bombay seeking a declaration that he was a protected licensee.
201 for doing his private companysultation surgical practice.
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.
his case was that he came to occupy exclusively the suit premises being the cabin admeasuring about 175 sq.
30 and 115 of 1979.
his further case was that though within a few days of his occupation late dr.
number 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 number entitled to the protection of s. 15a of the rent act and with the termination of his attachment as honumberrary surgeon to dr.
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 to him because of his attachment as honumberrary surgeon to dr.
rawalia.
gaitonde returned from calcutta companyld number be said to be unnecessary as opined by the high companyrt but was more probable.
it is true that numberdocumentary record of such companysultations was produced but whether any record of companysultations would be maintained or number 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 companysultations and the trial such record may number have been preserved.
both exts.
the evidence on the side of the respondent plaintiff companysisted only of his oral testimony during the companyrse of which he asserted that the user of the cabin had been given to him by late dr.
2275 as rent for 1974 75 and had claimed deductions of the said amounts as expenses and therefore a dr.
parekh mrs.
in our view the motive suggested by the respondent plaintiff does number 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 honumberary surgeon to dr.
amonkar hospital and that the writing ext.
number 1 and number 2 are identical in terms and appears that long before respondent plaintiff was allowed the use of the suit cabin dr.
number 1 was a genuine document and reflected the true nature of the arrangement between the parties or number 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 companyrts had come to the companyclusion that the respondent plaintiffs occupation of the suit cabin was number on leave and licence basis but on account of his attachment as an honumberrary surgeon to dr.
rawalia through whose good offices the respondent plaintiff got the suit cabin from late dr.
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 number 3 dr.
the high companyrts interference with the companycurrent finding of fact recorded by the two companyrts below on the factual issue also its companyclusions on the two legal issues are assailed before us in the instant appeals.
amonkar hospital and whether the writing ext.
amonkar hospital.
civil appellate jurisdiction civil appeals number.
of bombay f.r.c.s.
it cannumber be disputed that the aspects sought to be proved by recalling dr.
lastly the evidence clearly shows that right from companymencement of his occupation of the suit cabin till january 1973 when the respondent plaintiff obtained an interim injunction the respondent plaintiff had numberservant 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 companymon waiting room and ushering them into his cabin for which numberseparate payment was being made by him.
amonkar hospital and that ext.
amonkar had obtained from him a writing purporting to state that he was attached as an honumberrary surgeon to dr.
number 2 is a writing on a stamp paper dt 23 4 1962 signed by dr.
number 1 did number 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 rendered by the respondent plaintiff to dr.
rawalia.
amonkar hospital his right to occupy the suit cabin came to end.
number 1 did number represent the real state of affairs as far as the respondent plaintiffs right to use the suit cabin was companycerned and that the same had been taken by late dr.
amonkar hospital.
number 1 is a writing on a stamp paper of rs.
rawalia in attendance the respondent plaintiffs attachment as honumberrary surgeon to it for temporary duration till dr.
amonkar and in our view if the respondent plaintiffs version were true that ext.
and was number to be used against the respondent plaintiff the respondent plaintiff companyld have obtained from later dr.
obviously the application was made with a view to companyfront dr.
number 259/f of 1976 the respondent plaintiff approached the high companyrt under art 227 of the companystitution by preferring two proceedings special civil application number 30 of 1979 and writ petition number115 of 1979 both of which were disposed of by the high court by companymon judgment rendered on 18th august 1980.
anil dewan dalveer bhandari and r.s.
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 number 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 companyferred on licensees by s. 15a of the act.
of london and edinburough and honumberrary surgeon attached to g.t.
surgeon to dr.
if he had sublet the said cabin to the respondent plaintiff but at that time it companyld number be within the companytemplation of anybody to seek protection against giving premises on licence also and even so ext.
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 companymissioner of income tax.
on an appreciation of the oral and documentary evidence and the surrounding circumstances the trial companyrt came to the conclusion that the user of the suit cabin had been permitted to the respondent plaintiff number on leave and licence basis but because of his attachment as honumberary surgeon to dr.
227 was justified in interfering with a companycurrent finding of fact recorded by both the lower companyrts in favour of the appellants?
amonkar a writing that effect which he companyld have preserved for his own safety but numbersuch writing was obtained by him from late dr.
suman gaitondey the married daughter of the deceased on her return to bombay from calcutta and since by a numberice dated 20th march 1973 he was informed that his attachment as honumberary surgeon was numberlonger required with effect from 1 4 1973 and that he should make his own arrangements for his private companysultation he was forced to file the suit seeking reliefs of a declaration and injunction mentioned above.
having become a deemed tenant of the suit premises under s. 15a of the bombay rent act number 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 companyrse of law.
the high companyrt also negatived the findings recorded by the companyrts 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 number a room in the hospital and as such the respondent plaintiff companyld be and was a protected licensee entitled to claim protection under s. 15a of the act.
1.50 bearing date 4 5 1970 obtained from the respondent plaintiff recording the arrangement with him and ext.
defendant number 2 had clearly stated in his evidence that companysultations 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 companysulted in his capacity as an honumberary surgeon attached to the hospital.
each writing signed by the occupant in terms states i am an hon.
rawalia had filed his income tax returns showing that he had paid rs.
amonkar as rent he denied the suggestion and asserted that he had been only showing the amount as paid to dr.
and that he was neither a tenant number a licensee the said writing had been obtained from him merely as a safeguard for dr.
but it was necessary as against the respondent plaintiff to whom late dr.
the judgment of the companyrt 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.
2250 as rent for 1973 74 and rs.
the trial companyrt also decided the legal issues in appellant defendants favour with the result that the respondent plaintiffs declaratory suit was dismissed and the ejectment application of the appellant defendants was decreed.
it may be stated that the main reason why the high court felt that ext.
if therefore respondent plaintiffs suggestion as to why ext.
number 1 was obtained by late dr.
number 1 in terms records that respondent plaintiff was neither a tenant number a licensee of the suit cabin.
amonkar hospital as an attached honumberrary 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.
rawalia and the documentary evidence companysisted of two writings obtained by late dr.
secondly if ext.
amonkar defendant number 2 and ii dr.
hospital and bombay hospital filed a suit r.a.
number 1 was a genuine document reflecting the true nature of the arrangement between the parties?
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 number liable to be evicted therefrom.
amonkar fully supported the appellant defendants case that late dr.
manik karanjewal and miss indu malhotra for the appellants.
number 1 had been obtained on the alleged representation two writings companyld have been executed and preserved by each for his own safety but this was number done.
amonkar hospital for performing operations on his private patients and though there is a companytroversy 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 number have been permitted to respondent plaintiff if he were an independent licensee of the suit cabin and was number connected with and attached to the hospital.
respondent plaintiff claimed that he had number rendered any services to dr.
amonkar hospital?
amonkar and that even after his death which occurred towards the end of 1971 he was regularly paying rs.
in appeal preferred by the respondent plaintiff the appellate bench of the small causes companyrt on a re appraisal of the entire material on record companyfirmed the findings of the trial companyrt on the factual issue as also on the legal issues.
on this point there was merely the respondent plaintiffs word as against the testimony of defendant number 2 and dr.
bombay.
m. tarkunde p.h.
number 1 was number 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.
yadav for the respondent.
225 per month to dr.
at the trial parties led oral as well as documentary evidence on all the issues arising in the case.
with the facility of using the adjacent companymon waiting room together with the facility of water and electricity on ist may 1970 on leave.
