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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7130 OF 1999
1. Venkatesh Krishna Bhandarkar, residing at Jamshed Bldg., 1st floor, Jacob Circle, Mumbai – 400 011.
Since deceased by his legal representatives:
1a. Ashok Venkatesh Bhandarkar, Age-59 years, residing at 1, Shirin
Talkies Buidling, K. Khadye Marg, Sant Ghadge Maharaj Chowk, Mumbai – 400 011.
1b. Krishna Venkatesh Bhandarkar
Age-64 years, residing at 1, Shirin
Talikes Building, K. Khadye Marg, Sant Ghadge Maharaj Chowk, Mumbai 400 011. representative:
1b(i) Rhea Bhandarkar (Daughter), Age-42 years, Occupation: Service, R/o. Flat No. 15, Hempraba, N.S. Road, Near Bank of Baroda, Marine Drive, Mumbai 400 020.
1c. Uday Venkatesh Bhandarkar, Age-55 years, residing at A-15, Shanti Cooperative Housing Society, Moghul Lane, Matunga (W), Mumbai – 400016. representative:
1c(i) Juhee Bhandarkar (Daughter), Age: 37 years, Occupation: Service, R/o. A-15, Shanti CHS, Mogul Lane, Opp. Magnet Supermarket Mahim, Mumbai 400 016.
1c(ii) Sailee Prabhir Correa (Daughter)
Age: 32 years, Occuation Service, R/o B-801, Ashok Garden, Thokersay, Jivraj Road, Next to Dosti Flamingos, Sewri (West), Mumbai 400 015. ..Petitioners
Since deceased by his legal heirs.
1a. Edwin H. D’Souza (Son), Age: 40 years, residing at Aamrapali
Coop Housing Society Ltd, 9/A/13, Plot No. 5, Nagari Nivara, Parishad, Goregaon (E), Mumbai – 400 065.
1b. William H. D’Souza (Son), Age: 38 years, residing at Uttarayan
Coop Housing Society Ltd, F/13, Sher-E-Punjab, Mahakali Caves Road, Andheri (E), Mumbai – 400093.
1c. Godwin H. D’Souza (Son), Age: 37 years, residing at Uttarayan
Coop Housing Society Ltd, F/13, Sher-E-Punjab, Mahakali Caves Road, Andheri (E), Mumbai – 400093.
1d. Ruby Wilson D’Mello (Married
Daughter), Age: _years, residing at Pride of
Kalina Society, A/705, Sundernagar, Kalina, Santacruz (E), Mumbai – 400 098. …Respondents
Mr. Arun Palekar, for the Petitioners.
Mr. Vivek Walavalkar, a/w Sameer R. Bhalekar, for
Respondent Nos.1a to 1d.
JUDGMENT
1. This Petition under Article 227 of the Constitution of India assails the legality, propriety and correctness of a Judgment and Decree dated 27th November 1998 passed by the Appellate Bench of the Court of Small Causes in Appeal No. 44 of 1993, whereby the Appeal preferred by the deceased Plaintiff (predecessor-in-title of Respondent Nos. 1a to 1d), came to be partly allowed by setting aside the judgment and decree passed by the Trial Court in RAD Suit No. 3041 of 1977, and thereby declaring that the deceased Respondent-Plaintiff acquired the status of a deemed tenant under Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“the Bombay Rent Act, 1947”), and the judgment and order dated 29th April 1999 in Review Petition - Interim Notice No. 5675 of 1998, whereby the said Interim Notice also came to be dismissed.
2. Shorn of unnecessary details, the background facts leading to this Petition can be stated as under: 2.[1] For the sake of convenience and clarity the parties are hereinafter referred to in the capacity in which they were arrayed before the Trial Court in RAD Suit No. 3041 of 1977. 2.[2] The Defendant - predecessor-in-title of Petitioner Nos.1a, 1b(i) and 1c(i) and 1c(ii) was the lessee of four shop premises admeasuring 400 sq ft situated on the ground floor of Jamshed Builing at Jacob Circle, Mumbai 400 011, at the contractual rent of Rs.200/- per month. 2.[3] The Plaintiff asserted that in the month of November 1966, out of the said four shop premises, the Defendant had allotted one room admeasuring 90 sq ft (“the Suit premises”) on a monthly compensation of Rs.150/- for the purpose of carrying on the Plaintiff’s tailoring business under the name and style of “M/s Jude & Company”. 2.[4] The Plaintiff had been carrying on the business of tailoring in the Suit premises in his own name and on his own account and the Defendant had nothing to do with the said business, save and except handing over the possession of the Suit premises on leave and licence basis. The Defendant accepted the amount of compensation till the month of January
1972. However, to camouflage the real transaction between the parties, the Plaintiff used to write the words ‘royalty’, instead of compensation, and “for conducting Bhandarkar Stores” on the said receipts. No store either in the name of Bhandarkar or otherwise had been given to the Plaintiff for conducting Bhandarkar Stores as shown in the receipts. 2.[5] After the aforesaid prelude, the Plaintiff asserted, the Defendant induced the Plaintiff to execute an agreement dated 29th January 1972 purportedly for conducting “Bhandarkar Stores” in the Suit premises for a period of one year commencing from 1st November 1971 on payment of royalty of Rs.150/- per month, with the security deposit of Rs.3000/-. The Plaintiff avers, the said agreement was, in fact, as and by way of a leave and licence agreement. The intention between the parties was to grant permission to the Plaintiff to use and occupy the Suit premises on a monthly compensation of Rs.150/-. The initial leave and licence agreement in favour of the Plaintiff since the year 1966 was renewed from time to time. Even the agreement dated 29th January 1972 incorporated a renewal clause. 2.[6] On 1st February 1973, according to the Plaintiff, the said leave and licence agreement dated 29th January 1972 was valid and subsisting, and, therefore, the Plaintiff become a protected licencee/statutory tenant qua the Suit premises. 2.[7] Hence the Suit for a declaration that the Plaintiff was a protected licencee qua the Suit premises and the consequential relief of injunction to restrain the Defendant from dispossessing the Plaintiff from the Suit premises and to fix the standard licence fee, compensation and/or rent in respect of the Suit premises.
3. The Defendant resisted the Suit by filing Written Statement. 3.[1] It was contended that the Plaintiff was allowed to enter into the Suit premises as the conductor of the Defendant’s business “Bhandarkar Stores”. There was never any relationship of licensor and licensee. Thus, the Plaintiff had no independent right as a licencee qua the Suit premises. It was categorically denied that the Suit premises was given to the Plaintiff in the month of November 1966 at a monthly compensation of Rs. 150/- for the purpose of carrying on Plaintiff’s tailoring business. The Plaintiff had, according to the Defendant, requested the Defendant to allow the Plaintiff to keep a sewing machine in the Suit premises. However, that concession did not change the real nature of relationship between the parties. 3.[2] The Defendant contended that there was no subsisting licence between the Plaintiff and the Defendant. When the Plaintiff was put in possession of the Suit premises, Bhandarkar Stores was very much run from the Suit premises. The Plaintiff was simply allowed to run the Bhandarkar Stores along with its furniture, fixture and fittings. 3.[3] It was categorically denied that the agreement dated 29th January 1972 was a leave and licence agreement. Nor the intention of the parties to the said agreement was ever to create the relationship of licensor and licencee. Therefore, the question as to whether there was a subsisting licence as on 1st February 1973 was of no significance.
4. The learned Judge, Court of Small Causes, settled the issues. The parties led evidence. The Plaintiff examined himself and his brother, Ralf D’Souza (P.W.2). On his part, the Defendant (DW-1) entered into the witness-box.
5. After appraisal of the evidence and the material on record, the learned Judge was persuaded to dismiss the Suit observing, inter alia, that the Plaintiff failed to prove that the Defendant had allowed the Plaintiff to use the Suit premises on monthly compensation of Rs.150/- since November 1966, that the Plaintiff was in exclusive use and occupation of the Suit premises as of 1st February 1973 under a valid and subsisting licence and that the Plaintiff become a deemed tenant in respect of the Suit premises.
6. Being aggrieved, the Plaintiff preferred Appeal No. 44 of
1993. By the impugned judgment and order dated 27th November 1998, the Appellate Bench of the Court of Small Causes was persuaded to reverse the findings of the Trial Judge and hold that, if read in the context of the attendant circumstances, it appeared that the agreement dated 29th January 1972 was a leave and licence agreement and it was also valid and subsisting on 1st February 1973 as the Defendant had impliedly renewed the licence. Therefore, the Plaintiff was entitled to protection under Section 15A of the Bombay Rent Act
1947.
7. Being aggrieved, the Defendant-predecessor-in-title of Petitioner Nos. 1a, 1b(i) and 1c(i) and 1c(ii), invoked the writ jurisdiction.
8. I have heard Mr. Palekar, the learned Counsel for the Petitioner, and Mr. Walawalkar, the learned Counsel for the Respondent, at some length. With the assistance of the learned Counsel for the parties, I have also perused the evidence and the material on record.
9. Before adverting to the core controversy involved in this Petition, it may be apposite to note that there is no dispute over the fact that the original Defendant was a tenant of the shop premises. The jural relationship between the Defendant and the owner of the shop premises, including the suit premises, is not in dispute. The execution of the agreement dated 29th January 1972, as such, is also not put in contest. On the plain terms of the said agreement it becomes evident that the term expired after one year commencing from 1st November 1971, i.e. on 31st October 1972. Incontrovertibly the protection envisaged by Section 15A of the Bombay Rent Act 1947 to a subsisting licencee came into effect from 1st February 1973. The controversy between the parties, essentially revolves around the character of the said Agreement and the jural relationship formed thereunder.
10. The substance of the claim of the Plaintiff was that the said conducting agreement was a camouflage and the real relationship between the parties was that of a licensor and licencee. In contrast, the Defendant stressed upon the apparent tenor of the agreement to buttress his case that it was a mere conducting agreement.
11. Mr. Palekar, the learned Counsel for the Petitioners, mounted a multi-pronged challenge to the impugned judgment and decree. First and foremost, the Appellate Bench committed grave error in construing the document. In the process, the Appellate Bench lost sight of the fact that there was no pleading questioning the character of the document. In the absence thereof, the Appellate Bench could not have constructed a case for the Plaintiff which was not at all pleaded by the Plaintiff.
12. Secondly, Mr. Palekar would submit that, the Appellate Bench committed a manifest error in taking into account the purported surrounding circumstances to construe the nature of the document when the intent of the parties was explicitly evincible from the plain and unambiguous words of the said agreement. There was no occasion for the Appellate Court to delve into the purported attendant circumstances to gather the intention of the parties.
13. Thirdly, the evidence sought to be adduced by the Plaintiff was of no significance in the absence of pleading. The Appellate Bench could not have delved into parol evidence to ascertain the intent of the parties. To buttress these submissions, Mr. Palekar, placed reliance on the judgments of the Supreme Court in the cases of D. H. Maniar and Ors Vs Waman Laxman Kudav,[1] M/s A.V.R. and Co and Ors Vs Fairfield Cooperative Housing Society Ltd & Ors,[2] Mangala Waman Karandikar (D) Through LRs Vs Prakash Damodar Ranade[3] and a Division Bench judgment of this Court in the case of Peter Alex D’Souza 1 AIR 1976 SC 2340. 2 AIR 1989 SC 81. 3 2021 (4) ALL MR 376 (S.C.) 4 2002(3) Mh.L.J. 437.
14. In any event, according to Mr. Palekar, as of 1st February 1973, the agreement dated 29th January 1972 had expired by efflux of time. It was not the case of the Plaintiff that the said agreement was renewed thereafter. In these circumstances, it was not open for the Appellate Bench to hold that the January 1972 was renewed by stretching the case of the Plaintiff beyond imagination.
15. In opposition to this, Mr. Walavalkar, the learned Counsel for the Respondent-Plaintiff, would urge that the Appellate Bench of the Court of Small Causes, has correctly appreciated the evidence and material on record. Taking the Court through the recitals of the said agreement, Mr. Walavalkar, would urge, a cumulative reading of the said agreement, would lead to no other inference than that of the licensor and licencee relationship, that was established between the parties.
16. To buttress the aforesaid submission, Mr. Walavalkar took the Court through the pleadings of the parties and the terms of the said agreement. Laying particular emphasis on Clauses 11 and 13 of the said agreement, it was vehemently urged that those Clauses permitting renewal of the said agreement and allowing the Defendant to bring the sewing machine and allied articles for the business of tailoring, militate against the claim of the Defendant that the said agreement dated 29th January 1972 was a bare conducting agreement.
17. Mr. Walavalkar made an earnest endeavour to impress upon the Court that the attendant circumstances, documents and admissions elicited in the cross-examination justify an inference that the said agreement was in essence one of leave and licence and its apparent tenor was a camouflage. The thrust of the submission of Mr. Walavalkar was that, the evidence on record makes it abundantly clear that the Plaintiff was put in exclusive possession of the Suit premises and there was not an iota of evidence to show that any business was entrusted to the Plaintiff.
18. Lastly, Mr. Walavalkar would urge, the renewal of leave and licence agreement was not necessarily required to be effected by another agreement in writing. Renewal could be inferred from the attendant circumstances and the course of the conduct of the parties, and thus construing, the Appellate Bench has rightly held that as of 1st February 1973, the leave and licence agreement was valid and subsisting.
19. To lend support to these submissions, Mr. Walawalkar placed reliance on the judgments of the Supreme Court in the cases of Smt. Gangabai w/o Rambilas Gilda vs. Smt. Chhabubai w/o Pukharajji Gandhi,[5] Delta International Ltd Vs Shyam
V. Anantha Raju & Anr Vs T.M.
N. N. Dogra through Legal Heir Ajay N.
Dogra Vs Mira J Pahlajani through Legal Representative and Ors[8] and Chogalal Santokhji Raval Vs Sjamkarprasad Jagnath Varma[9].
20. The aforesaid submissions now fall for consideration.
21. Two pivotal questions arise for consideration. Firstly, what was the nature of the jural relationship evidenced by the Agreement dated 29th January, 1972; was it a bare business conducting agreement or a licence to use and occupy the suit premises? Secondly, if it is found that the Plaintiff was a licencee, whether the licence was subsisting on 1st February, 1973 and thereby the Plaintiff became entitled to protection under Section 15A of the Bombay Rent Act, 1947?
22. As noted above, there is no controversy over the execution of the agreement dated 29th January, 1972. The core controversy revolves around the jural relationship formed thereby. The thrust of the submission of Mr. Palekar was that, if the terms of
9 Writ Petition No. 5177 of 1996 decided on 27th September 2024. the agreement are read as a whole, no other intention than that of handing over the business for conducting the same, upon payment of royalty to the Defendant, is evincible. The intention of the parties, it is well recognized, must be gathered from the words used by the parties in the agreement. The approach of the Appellate Court in searching for the intent of the parties to the agreement by examining extraneous circumstances has vitiated the ultimate finding, urged Mr. Palekar.
23. In construing a contract, the primary and ordinary rule is that the Court must construe the plain words used in the contract. If the words are clear and unambiguous, the Court has to gather the intention of the parties from those very words and give effect to the jural relationship thereby formed. The Court has to look at the pith and substance of the document and not its form. Nor the nomenclature of the document or the label given by the parties thereto is of decisive significance. However, where the true meaning of the words used in the document is not clearly discernible and the intent of the parties to the document becomes doubtful, it would be legitimate to inquire into the attendant circumstances, to ascertain the real intent of the parties. It is also well settled that a contract is to be construed with reference to its object and whole of its terms.
24. A useful reference, in this context, can be made to the decision of the Supreme Court in the case of Provash Chandra Dalui and another vs. Biswanath Banerjee and another10, wherein the Supreme Court delineated the approach to be adopted by the Courts in the mater of construction of a contract. Paragraph 10 of the said judgment reads as under: “10. “Ex praecedentibus et consequentibus optima fit interpretatio.' The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'ex antecedentibus et consequentibus;' every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible. As Lord Davey said in N.E. Railway v. Hastings, [1900] A.C. 260 (267), ….. the deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible. In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument' it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply. (emphasis supplied)
25. In a recent pronouncement in the case of Annaya Kocha Shetty (Dead) through LRs. vs. Laxmibai Narayan Satose since 10 1989 Supp (1) Supreme Court Cases 487. deceased through LRs and others11, also a matter revolving around the construction of business conducting agreement, after following the pronouncement in the case of Provash (supra), the Supreme Court summarized the principles in the matter of construction of documents as under: “17. The guide to the construction of deeds and tools adopted can broadly be summarised as follows: 17.[1] The contract is first constructed in its plain, ordinary and literal meaning. This is also known as the literal rule of construction. 17.[2] If there is an absurdity created by literally reading the contract, a shift from literal rule may be allowed. This construction is generally called the golden rule of construction. 17.[3] Lastly, the contract may be purposively constructed in light of its object and context to determine the purpose of the contract. This approach must be used cautiously.”
26. On the aforesaid touchstone, reverting to the construction of the agreement in question, it would be necessary to extract the material terms of the agreement. The following clauses of the agreement dated 29th January, 1972, bear upon the determination of the controversy. “1. The Owner has agreed to give and the Hirer has agreed to take for running and conducting the said business in the name of BHANDARKAR STORES situate at Shop No.1 on the ground floor of Jamshed Building, Clarke Road, Jacob Circle, Bombay 11 for a period of one year commencing from 1st Day of November 1971 and ending on 31st day of October 1972 (both days inclusive). The Owner has put the Hirer in charge of the said BHANDARKAR STORES together with all the materials and things lying the min and the fixtures and fittings as per schedule hereto annexed with effect from the 1st day of November 1971.
2. The Hirer has agreed to deposit with the Owner a sum of Rs. 3000/-(Rupees Three Thousand only) as and by way of security deposit for the proper performance of the terms and conditions of this Agreement. The said deposit amount shall bear no interest and shall be refundable to the Hirer when this Agreement comes to an end and after the Hirer removes himself from the stores. The Owner shall be entitled to deduct from this deposit amount any moneys legally due to him by the Hirer under the provisions of this Agreement.
3. The Hirer shall pay to the Owner as and by way of Royalty a sum of Rs. 150/- (Rupees One Hundred Fifty only) per month. The amount of royalty for the month shall be payable in advance on or before the 5th day of every month commencing from the 5th day of November 1971 and thereafter on or before the 5th day of every succeeding month.
4. The Owner shall be liable to pay the rent of the business premises where the said Store is situate to the landlord every month. However the Hirer shall be liable to pay the electricity charges, licence fees and all other rates, taxes and dues applicable to the business that he may conduct during the period of this agreement. …..
8. During the continuance of this agreement the Hirer shall not be liberty to appoint a subcontractor or contractors under him in respect of the said business assign his rights to any other person or persons or to pledge, mortgage or hypothecate and transfer the interest in any way of the said business known as "BHANDARKAR STORES" and/or its assets to any other person or persons or purchase the stores requirements either in the name of the Owner or in the name of the Stores or add, alter or remove any of the things, fixtures and fittings now entrusted to the Hirer except without the written consent of the Owner. …...
10. It is agreed by and between the parties that they have no intention to create any rights of tenancy or sub-tenancy in favour of the Hirer in respect of the said business premises.
11. It is agreed by and between the parties that the period of this Agreement may be extended by mutual consent of the parties. …...
13. The Hirer is allowed to bring his sewing machines and allied articles for the business of tailoring at his own costs and risks. The Owner shall not be responsible for any loss or theft of the articles of machinery etc. brought by purpose of his business. ……
15. Upon the expiry of the term herein granted or sooner determination of these presents as provided above, the Hirer shall deliver possession of the said stores to the Owner along with the fixtures and fittings and articles and things of the Owner mentioned in the Schedule hereto annexed subject to the reasonable wear and tear thereof and the Owner shall refund to the Hirer the said deposit amount of Rs.3000/- (Rupees three thousand only) subject to deduction if any as provided thereinabove,”
27. On a plain reading of the aforesaid terms of the agreement, it becomes evident that the business in the name of Bhandarkar Stores, situated at the suit premises, was agreed to be run and conducted by the Plaintiff for the period of one year commencing from 1st November, 1971. Royalty was agreed to be paid at the rate of Rs.150/- per month. The Defendant was liable to pay the rent of the suit premises to the landlord. However, the other charges, like electricity consumption, licence fees, rates, taxes and cess, were to be paid by the Plaintiff. The Plaintiff was restrained from appointing a sub-contractor and creating any third party interest in any form in the said business. The parties expressly agreed that, they did not intend to create any tenancy or sub-tenancy in favour of the Plaintiff. Clause 11 made a provision for renewal of the agreement by mutual consent of the parties. Under Clause 13, the Defendant was allowed to bring sewing machine and allied articles for the tailoring business.
28. Cumulatively, one gets an impression that the apparent tenor of the agreement dated 29th January, 1972 was that of a business conducing arrangement. This apparent tenor of the agreement was the foundational premise of the submission on behalf of the Defendant that the Plaintiff could not have adduced evidence in derogation of the express terms of the agreement. The bar contained in Section 92 of the Indian Evidence Act which excludes evidence of oral agreement to the contrary, according to Mr. Palekar, applied with full force and vigor.
29. In the case of Mangala Karandikar (supra) the Supreme Court after adverting to the provisions contained in Sections 91 and 92 of the Evidence Act, enunciated that it is manifest from those sections that it was only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso. But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. If the contrary view is adopted as correct, it would render Section 92 of the Evidence Act otiose and also enlarge the ambit of proviso 6 beyond the main Section itself. Such interpretation, (as was provided by the High Court) violates basic tenets of legal interpretation. Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section.
30. At this juncture, it is necessary to consider the nature of the Plaintiff’s claim. If the averments in the plaint are read as a whole, it becomes abundantly clear that the Plaintiff’s case is not that the terms of the agreement executed by and between the parties were different than as expressed. The Plaintiff’s case was that the agreement did not incorporate the true jural relationship which the parties intended to form. The real transaction between the parties was altogether different than the one which finds expression in the agreement.
31. The aforesaid nature of the Plaintiff’s claim makes a critical difference. There is an essential distinction between a case where a party assails or contradicts the contents of the document and a case where the very character of the document is put in contest. In the latter case, the essence of the claim is that the parties never intended to form the relationship which is evident from the apparent tenor of the document. In such a case, the bar under Section 92 of the Evidence Act may not apply with the strict rigour.
32. In the case of Smt. Gangabai (supra) the Supreme Court had an occasion to consider the nature and import of the interdict contained in sub-section (1) of Section 92. The Supreme Court pointed out the distinction in the matter of challenge to the contents of the document, as such, and the character thereof, in the following words: “11. ….. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. (Tyagaraja Mudaliyar and another v. Vedathanni AIR 1936 PC70).”
33. A Three-Judge Bench of the Supreme Court in the case of
V. Anantha Raju and Another vs. T. M. Narasimhan and others12 after following the aforesaid pronouncement and the judgment 12 (2021) 17 Supreme Court Cases 165. in the case of Roop Kumar vs. Mohan Thedani13, reiterated the position in law as under: “34. This Court has further held in Roop Kumar case that Sections 91 and 92 of the Evidence Act would apply only when the document on the face of it contains or appears to contain all the terms of the contract. It has been held that after the document has been produced to prove its terms under Section 91, the provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. It has been held that it would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. It has been held that when parties deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.
24. Though referring to Gangabai w/o Rambilas Gilda (Smt.) v. Chhabubai w/o Pukharajji Gandhi (Smt.) and Ishwar Dass Jain (Dead) Through Lrs. v. Sohan Lal (Dead) by Lrs. (2000) 1 SCC 434, it has been held that it is permissible for a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document, it would be necessary to lead oral evidence to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.”
34. The legal position which thus emerges is that a party to the document may assail the document by contending that the parties had never intended to form the relationship which the apparent tenor of the document indicates, but an altogether different transaction was entered into by the parties and the express terms of the agreement in question do not reflect the true intention of the parties and, thus, are inconsequential. In the case at hand, it has to be examined whether the Plaintiff has succeeded in making out such a case.
35. For an answer, a brief recourse to the pleadings and evidence on record becomes necessary. The case of the Plaintiff is that the Plaintiff was put in possession of the suit premises in the year 1967 as a licencee thereof. The Defendant accepted the licence fee/compensation, however in the receipts that were issued the compensation was termed royalty. There was no running business which was entrusted to the Plaintiff. The Plaintiff was induced to execute the agreement dated 29th January, 1972 purportedly to conduct the business in the suit premises, however the real transaction between the parties was that of licence to use and occupy the suit premises for tailoring business.
36. The aforesaid pleadings, in my considered view, satisfy the requirements of necessary foundation in the plaint to support the case that the real intention of the parties was to form the jural relationship of licensor and and licencee and the January, 1972 was a camouflage.
37. Is there any evidence which lends credence to the aforesaid claim of the Plaintiff? To begin with, the very January, 1972, gives an indication about the said agreement not being the sole repository of the transaction between the parties. One year’s term of licence was to commence from 1st November, 1971 and expire on 31st October, 1971. Since the agreement was executed on 29th January, 1972, it implies that the Plaintiff had been in the frame, even prior to the execution of the said agreement. Secondly, the Defendant conceded in the cross-examination in no uncertain terms that the business of Bhandarkar Stores was given to the Plaintiff, albeit for conducting, in the year 1967, after Mr. Shirke, who was allegedly conducting the business therein during the period 19th August, 1966 September, 1967, closed down the business. The Appellate Bench has recorded that a number of agreements incorporating identical terms (Exhibit-11 Coll.), were executed between the parties. The receipts of payment of royalty, commencing from the month of December, 1967 to July, 1971 (Exhibit-F Coll.) further indicate that before the execution of agreement dated 29th January, 1972, the Plaintiff had been in the occupation of the subject premises.
38. What was the nature of the occupation of the Plaintiff, is at the heart of the matter. Before adverting to the evaluation of evidence on the said aspect, it may be necessary to note what a “licence” connoted under the Bombay Rent Act, 1947. Under Section 5(4A), the term “licencee” was defined as under: “Section 5(4A) “licencee”, in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co-operative housing society registered or deemed to be registered under the Maharashtra Co-operative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor, [or a person having any accommodation for rendering or carrying on medical or para-medical services or activities in or near a nursing home, hospital or sanitorium,] or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanitorium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of the exigencies of service or provision of a residence attached to his or her post or office is temporarily not occupying the premises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or institution; and the expressions "licence", "licensor" and "premises given on licence" shall be construed accordingly;]
39. Evidently, the definition of licencee excludes a number of persons from its ambit. Inter alia, a person conducting a running business belonging to the licensor does not satisfy the description of a licencee. The aforesaid exclusion would thus require proof of two facts. First, conduct of a running business. Second, such business ought to belong to the licensor. If it can be demonstrated that what was given to the person claiming to be a licensee was a running business, which was thitherto carried on by the licensor, the transaction would fall within the ambit of a conducting agreement.
40. Since the prior agreements and the agreement in question do indicate the apparent tenor of the relationship between the parties and the receipts, in turn, record that the payment was towards royalty, it could be urged that since inception the Plaintiff was merely conducting the business in the suit premises, in contradistinction to being permitted to use and occupy the suit premises for the purpose of Plaintiff’s own business. However, the evidence and material on record shows to the contrary.
41. On the one hand, there is positive material to indicate that a tailoring business was being carried on in the suit premises since the induction of the Plaintiff. The registration certificates issued under the Bombay Shops and Establishments Act, 1948, since the year 1968, indicate that the tailoring shop was run from the suit premises. The Defendant was shown as the owner and the Plaintiff conductor thereof. What was conspicuous by its absence was, the name of the store i.e. Bhandarkar Stores and the business that was run from the suit premises. Instead, the name of the establishment was shown “Jude and Company”, the name under which the Plaintiff claimed to have carried on the business of tailoring. On the other hand, in the crossexamination, the Defendant conceded in unequivocal terms that when the Defendant gave the business of Bhandarkar Stores to the Plaintiff, there was no stock in trade and no running business in the said store. The Defendant went on to further concede that since in the year 1971, the Plaintiff had changed the nature of the business. Though the store was there in the suit premises, the Plaintiff was giving more prominence to the tailoring business.
42. The aforesaid admissions in the cross-examination were required to be appreciated in the light of the fact that the Plaintiff had been in the occupation of the suit premises since December 1967, in the least. The agreement in question came to be executed in the month of January 1972. For all these years, the Plaintiff was shown to have been running tailoring shop in the suit premises. Conversely, there was not a shred of evidence to show that the business of Bhandarkar Stores was being conducted by the Defendant and it was handed over to the Plaintiff. Thus, it appears that the material on record does not justify an inference that there was a running business, belonging to the Defendant, which was given for conducting to the Plaintiff. It appears that as late as 1977, the Defendant professed to terminate the said agreement in response to the notice by the Plaintiff.
43. In the backdrop of the aforesaid evidence, the Appellate Bench was justified in construing the Agreement dated 29 January 1972 as not incorporating the real nature of the transaction between the Plaintiff and Defendant.
44. Reliance placed by Mr. Palekar on a judgment of this Court in the case of Fatimabai Noor Mohamed V/s. Khallil Ahmed and Anr.14 does not advance the cause of the submission on behalf of the Petitioners, as in the said case, the Plaintiff had suppressed the agreement under which he came in possession of the suit premises. I am, therefore, persuaded to hold that there was no error on the part of the Appellate Court in holding that the relationship between the Plaintiff and the Defendant was that of licencee and licensor.
45. This propels me to the question as to whether the Plaintiff was entitled to protection under Section 15A of the Bombay Rent Act, 1947. Mr. Palekar urged, with a degree of vehemence 14 1990(1) Bom.C.R.605 that even if the case of the Plaintiff is taken at par, the agreement dated 29 January 1972 had expired by 31st October
1973. Since there was no valid and subsisting licence as of 1 February 1972, the Plaintiff was not entitled to protection under Section 15A of the Act.
46. Section 15A of the Bombay Rent Act, 1947 reads as under: “15A. Certain licensees in occupation on 1st February 1973 to become tenants. (1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purpose of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation. (2) The provisions of sub-section (1) shall not affect in any manner the operation of sub-section (1) of section 15 after the date aforesaid.”
47. The Bombay Rent Act, was amended by the Maharashtra Act of 1973. By the amending Act, Section 5(4A) and Section 15 were introduced in the Parent Act, to confer on the licencees who were in the occupation of the premises on 1 February 1973, the status and protection of a tenant under the Bombay Rent Act.
48. From the phraseology of Section 15A of the Act, for claiming the protection thereunder, the licencee must prove that: (1) he was in occupation of the premises on 1 February 1973; (2) the premises or part thereof was not less than a room; (3) he was in occupation of the premises as a licencee, and; (4) the licence was subsisting.
49. Thus, in order to avail the benefit of Section 15A, the occupant must be in occupation of the premises as a licencee as defined in Section 5(4A), on 1 February 1973. If he be such a licencee, the non-obstante clause under Section 15A(1) gave him the status and protection of a tenant, notwithstanding anything to the contrary in any other law, or the contract between the parties. However, if he is not a licencee under the subsisting agreement on 1 February 1973, then he does not get the benefit of the protection under Section 15A of the Bombay Rent Act. (M/s. A.V.R. and Co. and Ors. V/s. Fairfield Co-operative Housing Soc. Ltd. and Ors.15 ).
50. Whether the licence was subsisting as of 1 February 1973, is the moot question. Mr. Palekar urged with tenacity that the licence had, by all means, expired by efflux of time on 31 October 1972. Since the Plaintiff was purportedly in the occupation of the suit premises after the expiry of the licence by efflux of time, by no stretch of imagination, could it be said that the licence subsisted as of 1 February 1973. The convulated manner in which the Appellate Bench arrived at a finding that there was an implied renewal of the licence has been strongly disapproved by the Supreme Court in the case of D. H. Maniar and Ors (supra), submitted Mr. Palkar. A strong reliance was placed on the following observations in paragraphs 10 and 11 of the said judgment: “10. It is thus clear beyond doubt that in order to get the advantage of Section 15A of the Bombay Kent Act, the occupant must be in occupation of the premises as a licensee as defined in Section 5(4A) on February 1, 1973. If he be such a licensee, the non-obstante clause of Section 15A(7) gives him the status and protection of a tenant inspite of there being anything to the contrary in any other law or in any contract. In other words, even as against the express terms of the subsisting contract of licence the licensee would enjoy the benefits of Section 15A. But if lie is not a licensee under a subsisting agreement on February 1, 1973, then he does not get the advantage of the amended provision of the Bombay Rent Act. A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person by no stretch of imagination can be called a licensee. If, therefore, the respondent was not a licensee under a subsisting agreement in occupation of the premises on February 1, 1973 he could not take shelter under Section 15A of the Bombay Rent Act. The trial Judge -found against him. Apart from the position that this was essentially a question of fact and a finding on which could not be interfered with by the High Court in exercise of its revisianal power under Section 115 of the Code of Civil Procedure, the High Court has done so, as we shall point out, by committing such gross errors of law and fact that we were constrained in the beginning of our judgment, though very reluctantly, to make some strong observations against the judgment of the High Court.
11. While reciting the facts of the case the learned Judge of the High Court states a fact in paragraph three of the judgment that the respondent was ordered to deposit in Court Rs. 29 per month which he did. We are happy to note that the learned Judge has rightly not rested his judgment on this ground of deposit of rent by the respondent. There was nothing to show in the records of this case that the appellants had ever accepted any money either in or outside Court from the respondent after March 31, 1966 by way of any rent of the licenced premises. A person continuing in occupation of such premises after revocation of the licence is still liable to pay compensation or damages for their use and occupation. If at any time such compensation had been paid or accepted it could not undo the effect of the revocation of the licence.”
51. Per contra, Mr. Walavalkar would urge that the facts of the case at hand, are materially distinct. In the Agreement dated 29 January 1972, there was a renewal clause and the parties had, in fact, by mutual consent, renewed the licence. Special emphasis was laid on the acceptance of the licence fee even after the alleged expiry of the term of the licence to bolster up the case that, by his conduct, the Defendant had renewed the licence. Reliance was placed on the receipts dated 5 August 1973, 5 Februry 1974 and 5 May 1974 (Exh. F Colly.) which evidenced the acceptance of the amount, albeit as a royality. In addition, in a communication dated 30 June 1978 (Exh.H Colly), the Defendant conceded that the royalty charges were paid till the month of May 1975, and, thus a demand for the arrears of the royalty charges was made from 1 June 1975.
52. Such conduct of acceptance of licence fee, disguised as royalty even after the expiry of the term of the licence, according to Mr. Walavalkar, indicates that the parties by mutual consent, renewed the licence.
53. The submission appears well founded. On the one hand, there is material to show that the Defendant accepted the royalty till the month of May 1975. On the other hand, the Defendant did not take any action to terminate the jural relationship between the Plaintiff and Defendant till the year
1977.
54. If the aforesaid factor is considered in juxtaposition with the evidence which throws light on the nature of the jural relationship between the parties even prior to the execution of the agreement dated 29 January 1972, an inference becomes inescapable that for over three years after the expiry of the term under the said agreement, the Defendant accepted the royalty without any demur. Thus, the decision of the Supreme Court in the case of D. H. Maniar and Ors (supra), does not govern the facts of the case at hand, as in that case, there was an express termination of the licence and there was no material to show that the landlord therein had ever accepted money by way of rent or licence fee after the termination of the licence.
55. Reliance placed by Mr. Walavalkar on a judgment of the learned Single Judge of this Court in the case of N. N. Dogra through Legal Heir Ajay N. Dogra (supra), wherein in a somewhat similar fact situation, this Court held that the licence was subsisting as of 1 February 1973, as the occupation of the occupant therein was with the permission of the owner, appears well founded.
56. For the foregoing reasons, I am impelled to hold that the Appellate Bench committed no error in passing the impugned decree. In exercise of the supervisory jurisdiction, this Court does not find any infirmity in the impugned judgment and decree. The Writ Petition, therefore, deserves to be dismissed.
57. Hence, the following order.: O R D E R:
(i) The petition stands dismissed.
(ii) Rule discharged.
(iii) The parties shall bear their respective costs.