~ SMT. M.M. AMONKAR & OTHERS oa fe
- +" DR.S.A. JOHARI
*.
Febraury 21, 1984
[ V-D. TurzaPurKaR AND SanyAsAcn! MuKHARII, JJ. ]
Gonstitution of India, 1950, Article 227 Scope ‘of —Justification of interference © with a eoncurrent finding of fact recorded by both the lower courts in-respect of the nature of eccupation.of premises by the lessee and in favour of the lessor by the High
€ourt— Whether the lessee of the cabin a “protected licensee under the Bombay Rent " Aet (No.-57 ef 1947) as amended by the Maharashtra Act XVH of 1973. ‘\
The Respondent original plaintiff-~ a doctor by profession was in occupation of a smail cabin (admeasuring approximately.175 sq ft) which i is a part of the premisos of Dr. Amonkar hospital of which the appellants are the proptietors. The Life
- Insurance Corporation of India is the owner of the building. The appellants ‘threa- toned the Respondents to evict him after issuing a notice dated March 20, 1973 ° informing the Respondent that his attachment as Honorary Surgeon was nolnger Tequired 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 Smail Causes Court of Bombay se¢king a declaration that he was a “‘protected lincensee” (havmg become a deemed tenant) of the suit premises under section 15A of the Bombay Rent Act (Act 57 of 1947) ag amended by the’ Maharashtra Act XVII of 1973 and for injunc- ” tion 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 giveh 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 end after obtaining a writing an stamp paper reflecting the true nature and eharacter 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 plainiff was permitted the user - thereof only for 2-/2 hours in the evening on week days between 5 P.M. and 7.30 PM. and for the rest of the time it was being used by the hospital staff and that one i of the key" s of that cabin always remained ‘with the staff of the hospital and henos
’ ¢ §
‘ “ ay
~ eb ai
“3 atte nn
. - sy : . - : ~~
MM. AMONKAR ¥. S.A. JOHARI - 647 disentitling to any protection of the Rent Act, and (c) that the cabin in question ‘be
_ ing 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 Protecy ° tion conferred on licensees by, section 15A oft the Rent Act:
at ,
+
The appellanits also filed an Ejection Application against the respondent plain- tiff seeking his eviction from the suit premises under section 41 of the Presidency -
Small Causés 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 resistéd 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 caine to the conclusion’ that ‘the user of the suit cabin, had been permitted to the réspondent—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 cabit canie to an end.
The Trial J udge decreed the suit. In-appeal preferred by the respondent—plaintiff;
the Appellate ‘Bench: of the Small Causes Court on reappraisal of the entire material
. oh record confirmed the findings of the trial court both.on the ‘factual and on legal ~ The respondent—plaintift when. approached the - issued: and dismissed the appeal. High Court under Article 227 of. the Constitution the High Court interferred with sions both on the factual i issue and the two. legal issues. Hence the appeal after obtain- |
_ ing the special: leave ‘of the Court. a {ot
_
HELD: I. of fact recorded by both the courts below aad even on mers, the High Court J udgreat cannot be sustained. {663 C]
revealed in the respective procecditigs and judgments 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 reappreciating the evidence 1n depth as if it were a first Appellate Court was not correct. - [653 F:G] ‘ .
~The comnients of the High Court that the rejection of an application to recall | ta a
Allowing the appeals,’ the Cotirt ae 7 ‘ _—
—
2.1, The opinion of the High Court that there were two disturbing features \ ,
“ the concurrent findings of fact found by the two léwer courts and ‘reversed the deci-
The High Court was not right in reversing the concurrent ‘finding - .
- one eof the witnesses viz.’ Dr. Rawalia and to direct him to Produce his Income Tax ny
’.
H .
i984 2 SCR,
648.7 . SUPREME COURT REPORTS 7
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’ ihe 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. Rawatia 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 querry in that behalf bis counsel was not willing to give particulars or disclose’ the source of information and it was, therefore, difficult to believe that the respondeet—plaintiff came in possession of the said information after the cross-examination of.the witness was over and after the closure of appellant—defendants’ caso; (b) that under section’ 138(1)(b) of the Income Tax Act, 1961 the respondent—plaintiff could have and should have obtainedgthe 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 thé 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-XVHI Rule 17 of CPC on which strong reliance was placed by counsel for the respondent——plaintiff was to be exercised in exceptional circumstarices and. no exceptional circumstance had been made out by the respondent— plaintiff inasmuch as these documents would have bgcome available to him before he started the witness’s cross-examination. May be in the exercise its discretion another Court might havestaken’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 ona point’ or for rejecting an application may be wrong of disclose a non-judicous 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 -or purpose. [656B-H, 657 A-C] : ,
N , .
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 io the respondent—plaintiff not on leave and licence basis but because of his attach- :
ment as. Honorary surgeon to Dr. Amonkar hospital. [663 B-C]
* ‘
Appeals by Special yeave from the Judgment and. Order dated
Civin APPELLATE JURISDICTION : Civil Appeals Nos. 104-105 of 198i t oo 4a ~ ct ad a ~ oa \ ~
Fy oM. ‘AMONKAR v! S.A. JOHARI (Tueapurkar J , 649 .
* the isth August, 1980 of the Bombay High Court i in Writ Petition
Nos. 30 and 1i5 of 1979.
BM. Tarkunde, P. H. Parekh, ‘Mrs. Manik Karan ‘and Miss. Indi . Malhotra for thie Appellants.
fy my
Anil . sé, Dalveer: Bhandari and ° RS Yadav for the . Respondent. The Judgment of the Court was delivered by aa
, t * “a 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 _ ower Courts in favour of the appellants?. and (2) Whether the respon- dent was a protected licensee in respect of the’ ‘suit premises under the .
e
Bonibay Rent Act (Nd. 57 of 1947) as amended by the Maharashtra,
Act vir of 19732
.
This unfortunate litigdtion between ‘eminent medical practi
-tioners of Bombay has been hotly: contested before ys since it relates’ : '- to professional accommodation of which there is great dearth in that , city. The accommodation in- question consists of a small cabin admea- o>
_ Son and two 6 daughters are medicos), .
suting 15’-6" x 11’-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 __ pe
Dr Johari “ihe respondent-plaintift) an M. BB. S. of - Bombay, -
- FRCS. of London and: Edinburough and Honourary Surgeon atta- |
~ ched to GT. Hospital and Bombay Hospital, filed a suit (R.A. ‘Suit
. : oN \
Yo i! : a
~ 650 7 - SUPREME COURT REPORTS, [1984] 25.C.R.
_ No. 779/2893 of 1973) 3 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 XVITof 1973 and for injunction restraining the appellant—defen- dants from taking forcible possession of the suit premises and of 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 cabii 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. Amonkaf on payment of monthly com- pensation 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 ptivate consultation practice in the premises, that he had agreed to bear and pay rateably the experises.of telephone, use of furniture, etc, and ‘that he was neither a tenant nor a licensee, the said writing had a beefi obtained from him merely asa 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. Amon-
_ kar and that even after his death which occurred towards the end of 197] he was regularly paying Rs. 201/- per month to his heirs till January 1973 but since threats of forcible dispossession wefe held out to- him by the appeliant-defendants, particularly By appeallant- -defendant ‘No. 3 Dr. Suman Gaitondey (the married daughter of’ the deceased) on her return to Bombay from Calcutta, arid since by, a notice dated 20th March, 1973 he was informed that his attachment as henoutary ‘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 ofa declaration and injunction mentioned above. . ‘ c Nena grounds: (a) that the cabin was never given to “the ‘Tesporident—plaintiff on leave and licence basis as alleged by him, that he was.never in exclusive us¢ and occupation thereof*but the user ‘ofthe on was given
The suit was resisted by. the appellant—defendants on. three woos : Ao . . . . . . : fe . ’
* t
‘, . a
MM. AMONKAR 1. S.A. SOHART t (Duléapurker, J. ) . | 651+
. Pa to hin because of his attach ment’, 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—-plaihtiff 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''thereof 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 €xclusionary pert of the definition. of the licensee’ given in s. 5 (4A) and as such was outside the protection: conferred, on licensees by S. ASA of the. Act. ’
. ~
‘¢
“Tt may be stated that. while the aforesaid suit ‘was perding. ihe |
-appellant— defendants on their ‘part filed an eviction petition being
Ejectment Application. No. 259/E of 1976 against the plaintiff—respon- -- dent: seeking: his’ eviction from the suit. premises under s.. 41. of the
: Presidenc y Small Causes Courts Act on the ground that the plaintiff S ri ight. to cecupy the suit cabin had come to-an end alongwith the termination of fis attachment as ‘Honourary Surgeon to Dr. Amonkat
-. Hospital and’ the: plaintiff resisted the said’ evicticn cn.the ground that -
_he was a, protected. licensee under the Bombay Rent Act as amended
“by the Maharashtra Act XVII of 1973 and was, -therefoyt, not liable to be evicted therefrom. The -two proceedings were ‘heard together:
and common evidence ‘was recorded, in the declaratory suit being R. A,
No. 1779/2893 of 1973:
, a . ‘ ra
: ry t £ ties in the two proceedings before the Small Causes Court principally thiee issiies arose for .détermination, namely, (1) what was the ‘true
-nature of the arrangement.between the parties regarding the user of the.
leave and -licence basis on payment of monthly compensation -or it ;
suit cabin by the plaintiff, whether the plaintiff’s user of the cabin ‘was on
\ . i
/.
It is clear that on ‘the basis of the rival pleadings of the two par-
~
H.
. 652° . >. SUPREME COURT REPORTS [1984] 2 s.cr.
oe 7? .
" 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. ])' 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 in the hopital’ falling within the exclusionery part of the definition of | ‘licensee’ under 5 (4A) and, therefore, outside the protectionc ontemplated by s. 15A of the Act? It is obvious thatthe 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. | . oe .
‘ ;
At the trial parties Jed oral &s well as documéntary evidence on all the issues arising in the case. The evidence on the side of the, fspondent—plaintiff consisted only of his oral testimony, during the course oftwhich 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- Amonkat+one from the respondent—plaintiff and the’ other from Dr. Rawalia. Ext. No. 1 is a writing ‘ona stamp paper of Rs. 1,50. bearing date 4-5-1970 obtained from the respondent—plaintiff recor-" ding the arrangement with him, and Ext. No. 2isa writing on a. stamp
' paper dt. 23-4-1962 signed by Dr. Rawalia recording the : arrangement .
with him .“Both Bxts. No.,1 and“No. 2 are identical in terms and , appears that Jong before respondent—plaintiff was aliowéd the use of the suit cabin, Dr. Rawalia had been allowed the use of another ~
- cabin'in the hospital premises by late Dr. Aménkar on the same terms. _ Each writing signed’ by the occupant in terms states: “Iam an Hen.
‘Surgeon to Dr. Amonkar Hospital. I am/‘allowed to practice may. private ‘consultation in the prentises. I am neither licensee nor -sub-. tenant. I have ‘to bear tateably the expenses incurred towards telephone, electricity, use of furniture. and instruments”. Dr. Rawalia,
_ through whose good offices the respondent—plaintiff got the suit . ‘ecabin from late Dr..Amonkar ‘fully supported the appellant—defen- - dants’ cas¢ that late Dr. Amonkar had permitted the respondent—plain- » Co » f
* ee
_# ay, ot r tiff to make use of the suit cabin becauseof his attachment as Hono-
. tary Surgeon to Dr. Amonkar Hospjtal. On an appreciation of the. ofal and documentary evidence and the surrounding circumstances, .
the trial Court came. to the conclusion that the user of the suit cabin’
chad 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.. i which was signed by him
"-safter 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 ‘entilted 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 coccupy the suit cabin came to.
.end, The trial Court also decided the legal issues in appellant—defen- _dants’ favour with the result that the respondent—plaintiff” s dedlara- tory. suit was dismissed and the ejectment application of the appel-
“Tant—defendants was decreed.-In appeal preferred by the respondent—
~ . plaintiff the Appellate Bench of the Small: Causes Court on-a Te-ap- praisal 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 confirmd.
gainst the dismissal of his declaratory suit and the ejectment _ decree passed in EA. No. 259/F of 1976 the respondent—plaintiff —_ - approached ‘the High Court under Att. 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 distur- _bing features revealed in the respective proceédings/judements 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 ‘Appel
_late Court; and after briefly.indicating what it felt were the ° two distur- bing features, the High Court re-appreciated the entire evidence fully
_and in depth and came to the conclusior 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 Tight‘to use the’ suit cabin was. concerned and that the same had been taken by. late Dr. Amonkar only’ ;
- M.M. - AMONKAR V, S.A. TOHARI (Puteapurer, J. ). . | 653 _ at a CS call
.D-
E°
“4G
: 654 . oi SUPREME ‘COURT REPORTS: , 1984) 2 8. CR.
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 lega].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. thé 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 as 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—defend: ants 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 fhe writing Ext. No. 1 was a genuine document ° and reflected the’ true nature of the artangement 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 atid licence basis but - onaccount of hisattachment asan 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 fir.ding of fact, unless it was perverse, which it was not because there. was ainple evidence on record to support it, could not be interfered with b the -High’ Court under Art. 227.. Courise] further urged that the justification given by the High Court for interfering with such cencurrent finding ‘of fact was unsustainable inasmuch as the so-called two disturping features were not really any distrubing features much less were they Suggestive of any hon-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. Counsel’ strongly urged that .—
, the Suggestion of non-judicial approach or of bias gr of partiality on
’ the part of the Jearned single Judge and the two learned Judges of the Appellate Benchi of the Court of Small Causes was unwarranted, , un-
‘ called for and ought not to have been made. ven on -merits the High
' ¢
’
M. M. AMONKAR Vv. SA sOHARI (Tuzopurkar, J. y'. ' 655- * « - Court’s view. on the factual issue, was wrong. It was. ‘also contended Se that evidence clearly showed that the suit cabin had not been‘ separately’
given to the respondent—plaintiff{and in “any case it was‘arecmin the hospital’ and as such’ the respondent—plaintift” was not entitled
‘to claim any protection of the Bombay Rent Act. Oh the, other hand, counsel for the respondent—plaintiff supported the High Court’s:
findings on all the issues and urgéd that there was no ‘reason to disturb” the judgment under appeal.
. This necessitate’ 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 matle it to undertake a re-appreciation ‘of the entire | evidence in depth'as if it were a firstappellate Court. In the trial Court a _ after examining their two witnesses the appellant—defendants closed. .
~ their case on 18th September, 1976 and the case was fixed for argu:
ments 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 s+... 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_4s rent for 1974-75 and had claimed: deductions of the said
- amounts as expenses and, therefore, (a) Dr. Rawalia be receiled fer furthér cross—examination and (b) that his: Income ‘Tax Returns ‘for aA the said three years be got produced, through: a witness summons or | - letter of request being issued to the Coniinissioner of Income Tax,
Bomay. Obviously, the application was made with a view to confront —
“a Dr. Rawalia -by his own Income Tax. Returns which he had filed for. oo _ proving (i) that Dr. Rawalia had made a false statement and (ii) that
«> ter of rent. It cannot be disputed that the aspects sought to be proved by recalling Dr. Rawalia and by getting his, Income Tax Returns prccu- €d -were relevant to the issue involved in the case, though it is well: _ oo settled that a particular nomenclature given to payments-made ‘by a patty is not conclusive or decisive of the matter. The application wes
é
“ paynients made by him to the appellant—defendants bore the charac- -*
‘
7 an
‘et
_ a SUPREME count REPORTS.” [1984] 2 scr.
dismissed by tlie learned trial Judge’ on 18th of October, 1976 and according to the High Court this rejection of the application was a - if _ disturbing feature suggestive of a non-judicial approach, some bias ~ * of 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 | inthe matter of rejection of this application’ would have had some Bs; force if the application had been imply dismissed without Biving any reasoris but the learned trial Judge passed a lengthy ‘order giving three reasons for the rejection of the application: (a) that vague averments . "swere 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 querry a 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 respondeht—plaintiff came in possession of the said information ; ” after the cross—examination of witness was over arid after the closure” os 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 e 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 fo get the information by following ‘the prescri- ~ bed 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 Ozrder XVIII Rule 17 of C.P.C,, on which strong reliance)” was placed by Counsel for the respondent—plaintiff was to be exercised 2 ", in exceptional circumstances and .no exceptional circumstance had been made out ‘by the respondent—plaintiff inasmuch as these docu- _ ments would have become available to him before he started the wit- |. ness’s cross--examination. May be in the exercise of its discretion 24 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 irratiosial tlie rejectidn of the ie application cannot be. dubbed as suggestive of non-judicial approach G "OF bias or partiality on his part. Iti 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 extcise of discretion and open to correction in appeal, but no motive of a jon-judicial approach or bias xr ay? OF partiality could be attributed unless, as we have said above, the H reasons given aré moon shine or so ‘flimsy or irrational that they are ~ “ _ uateal, Considered | dispassionately, such a thing can never: be said
\ . -
H ‘ :
g.t tenn! about the! feasons given by the trial Fudge for rejecting the application...
“7 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 Awrongly 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
“a2, application had been made in Ground No. 27 of the Memo.of Appeal
;, the’ appellate Court has slot dealt with.it. This also shows that the - : rejection was not regarded by the responderit—plaintiff or his counsel before the appellate Court as any, serious oF disturbing feature. In any aoe t case, as stated earlier, the rejection. of the application could not-be
§ regarded as having stemmed from any oblique m motive .of 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 th 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.
a ay” .. . -the hearing of the appeal after supporting the trial Court’s finding on ' ue Ae the factual issue as also the ‘findings on the legal issues and pressing
‘their acceptance, counsel for the appellant—defendants put for- -
= ward an ‘alternative last submission that even proceeding on the assumption that an oral licence had been created in. respondent—>plaintiff’s favour by late Di. “Amonkar, as-alleged by him, the material on record .
wee MOM. ‘AMONKAR VPS.A. JOHARI (Tulzapurkar, J) 687
A.
“ wa
Cc to re-appreciate the whole evidence as done by it. It appears that during ~"...
- 2 -showed that the ‘said licerice did not subsist on the relevant date, namely, ce "1-2-1973, mentioned in s. 15A and, therefore, he was not entitled to.”
na any protection under the Act, and in that behalf an averment made by. the respondent—plaintiff i in paragraph 4 of his complaint dated, f 4-3-1973 addtessed to the Inspector of Police, Gamdevi Police Station was relied, which averment' runs’ thus: “Ever since théré has “been a °
*., publicity in the newspaper that the Govt. of Maharashtra is aboli« _ shing the leave and licence system (meaning thereby that the Govern- he ment 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 tuimbered as | Act XVII of 1973) had. been introduced or published ig...
HON . and
+ t
“f v4 x
658 |. k. SUPREME COURT REPORTS [1984] 2 eR. . ae m 4 . A * August, 1972 the respondent_—plaintiff’s licence, on his own aforesaid
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 respon- 7 detit—plaintiff’s licence, ifsany, was not subsisting on Ist of February as 1973 and he was not entitied to protection even if his case were assumed :th to be true. According to the High Court such a conclusion drawn by the appellate Bench was an impossible one having regard to the plead-- _ ings and the evidence on record, for, according to-the High Court, ae Dr. Amonkar that the respondent—plaintiff was categorically told that ’ . he should make alternative atrangement for His consultation practice elsewhere with effect from 1-4-1973 which showed that his Jicence was terminated -with effect from date. It must however be berne in mind that’ what -was terminated, by the notice dated 20th. 1 _ 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” 8 licence continued upto Ist of April, 1973. The appellate Court while accepting the alternative submission was proceeding on the assumption that the resepondent—plaintiff’s occupation was as a licensee and on E 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 i in the first place assuming. that the appellate Court’s conclusion in that behalf was not justified on the evidence on record Fr the same’could' at the highest be regarded as a wrong conclusion but “itis impossible to say that it was suggestive of a non-judicial apprcach or bias or partiality on its part.. Secondly, it amounted to acceptance -of the alternative contention on an assumed basi§ after the appellate Court had already, on a re-appraisal of the entire mater ial 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, theconclusion on the alternative submission was not merely innocuous i.¢. ° unmotivated by any oblique purpose but inconsequential to the dispe-_ > sal 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 outght not to have. interferred - HH - with the concurrent finding of fact recorded by the two Courts below -on the factual issue arising in the case. : .
* ‘ averment, was“not subsisting and had come to an end long before. .
co ~ it was by notice dated 20th March’ 1973, issued, by the widow of ledemg.- s ae
‘M.M. AMONKAR ve 8. A. JOHARI \(Tulzapurkar, v. )° : . 659
Though the aforesaid conclusion of ours would be sufficient to A _>~ ' ‘dispose of the appeals, even on merits we feel that the broad features | “1 emerging from the evidence on record make it difficult to accept the: : respondent—plaintifi’s case that the user. of the suit cabin was permit _ ted to him on leave and licence basis as Claimed by him. Admittedly, Dr. Amonkar Hospital ‘was never exclusively a Maternity and Gynaeocological Hospital! and hada Nursing Home Department where general "° B _ @perations were undertaken and as such attachment of couple of doctors — ~ | aS Honourary Surgeons to it would be most natural and, since at the | aan ; materia! time. both the-senior Dr. Amonkar,(since deceased) and, the * °° junior Dr. Amonkar (defendant No. 2) were. on account of their ill- ar ae ‘health, unable to work with full vigour, with only doctors (Dr. Miss — "Usha Amonkar and’Dr. Rawalia) in attendance the respondent— -plan- =. C ; ‘tiff’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. ws 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 ‘ :, > > thitd ‘floor. of the véry building and that the respondent—plaintiff had . taken: advahtage of the gesture shown to him ‘by late Dr. Amonkar "as s Dr. /(Mrs.) Gaitonde was away at Calcutta.
*
J Secondly, even 1 the High ‘ourt has aceépted the position thatthe . EK . user of the suit cabin became available to the. respondent—plaintiff J, A2Las 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 an the same terms on which he had. been permit- oo ; - ted. the user of his cabin inthat Hospital, namely, because'of attache = Fo * ment 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. Aprt from some minor contradi¢- © . tions’ (which were really omissions) that appeared in his evidence jn light of the averments made by him in his earlier Affidavits fiedin the = - .: "proceedings, the main reason for discarding his evidence has been =. G that he’ could not be regarded as disinterested witness because of, his nh close ties with the, Amonkar family and that he had displayed } an 5 a4 attitude of being ever willing, to sign any affidavit or to swear to any, a, ‘thing*to help whont he had come to help; for instanceche had goné to © = Ot
“"
the extent of saying ‘‘so, far I am not asked to go out but J ani prepared H.> *. to go as and when they will tell me te Bet out” Which | ‘showed that~
_ 660 an | SUPREME COURT REPORTS «__ (1084) 2S.CR.
eek t ’
‘ he had identified ‘himself with: Amonkars. In cur view these aspects a ‘would not be good reasons for discardirig 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, -Yworking with them in that Hospital since 1954 and the mere fect 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 stcret- ‘ | wriderstanding between him and Amonkars as was sought to be sug- ‘ gested by’ counsel] for. the respondent—plaintiff. Since he was a Signa~ = 3» ; tory 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 Surgeor—e- ~ to Dr. Amonkar Hospital'and as such his right to occupy the cabin ’ “ would, come te an.end as and when his attachment would cease, that “is to say, as and when Amonkars would ask him ‘to go. Far from show-.
“ing any interestedness in the Amonkars his aforesaid statement was =~ -
_ an admission against his own interest, as it exposed him to imminent. , tisk 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
7 _ Dr. ‘Rawalia who showed his willingness to honour his word by stick-
*. ‘in any of them. But so far as Exh. No. 1 is concerned it is clear. that an
,
- ing to the arrangement to which he was a signatory~ and for net behaving - in the manner as Fespondent—plaintiff has done, would’ be a travesty.
p oF justice. . . Lo. . eo on ; ye . oe . oa aed = ve
Thirdly, turning to the dooumentay evidenc, it must be observed XY
, that the three-or four receipt produced ‘by the respondent—plaintiff 7 “showing monthly payments made by him would be of no avail because | * 3 the nature or the character of thé payment, whether it was by way of compensation or towards ratable expenses, has no where been indicated - ree:
‘ this document in terms indicates that the respondent—plaintiff was”
Oa : permitted to use the suit cabin not on leave and licence basis but bee ¢
. Cause of his attachment as Honourary Surgeon to Dr. Amonkar Hospi- 5, tal and that it contains a categorical admission on ‘his part'that he was * neither a tenant nora licensée thereof. In cross—€xamination respon-" . , dent—plaintiff admitted that he had signed this document after fully, -. ~ \ understanding the contents thereof. If that be so, his oral testimony |, “which tuns—counter to the document cannot obviously bé accepted | hes, “unless, of cours¢, 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. , OnAs ruggested y the © respondent plaintiff, As regards the motive of
4 “ ae protection was. unnecessary as against the L.LC..but, it was necessary . as against the respondent—plaintiff to. whom late Dr. Amonker wanted . ‘to ensure that the user of the cabin was allowed only 4 in the capacity em y +
M.M. AMONKAR, v. S.A, JOHAR (Tulzapurkear, Fy 661 ;
purpose fot which the document was ‘said to have heen obtained’ there
- ar€ 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.1€. if he had‘sublet the said cabin to thé respondent—plaintiff but at that time it could not be within the cont¢m-
- plation.of anybody to seek protection against giving premises.on licence " also, and even so Ext. No.. in terms records that respondent—plaintiff was neither a tenant nor a licensee of the’ suif cabin. Such’a double of an attached Honourary Surgeon to the Hospital and i in‘no other by the respondent—plainitiff does not gt in with thé situation or state
-of affairs that existed in May,1970 and the document really records
-and that is-what Ext. No. 1 says, In our view, the. motive suggested the true transaction between-the partiés, namely, that the respondent— plaintiff was allowed the user of the suit cabin because of his attach- ment.as' Honorary Stirgeon-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 protéctirig himself against the LC.
and was not to be used against the respondent— plaintiff, ihe respondent—plaintiff could have obtained from later Dr. Amonkar.a writing such writing was obtained by him from late Dr. Amonkar‘and; in our
* view, if the respondent—plantiff ’§ version were true-that Ext: No. 1 had been obtained on ‘the-alleged representation two writings could
‘have been executed and preserved by cach for his-own safety“but this was not done. If, therefore, respéndent—plaintiff ’s suggestion as to why Ext. No. 1 was obtained by late Dr. -Amonkar from him is not *
; that effect which he could have preserved for his own safety but no © beli¢vable—and for the reasons indicated above it is not—the. respon-+ dent—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. edo s
‘Tes may r be stated that the main reason wliy the: ‘High, éourt 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 |
” s #
%
\,
Pa
662 - SUPREME COURT REPORTS -_ {1984]24.cR.
. fendered by the respondent—plaintiff to Dr. Amonkar Hospital. On ~
‘this point there was’ merely the respondent—plaintiff’s word as against vcthe testimony of defendant No. 2 and Dr. Rawalia. Respondent—plain- _ . tiff claimed that he had not rendered any services to Dr. Amonkar
Hospital as an attached Honourary Surgeon ‘thereto ‘while both the’ witnesss on the side of the appellant—defendants asserted that con-
. sultations 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 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 pre- ~ operative or ‘post-operative problems arose in maternity cases and this was dont 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 jt 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 tat he had made use of the Operation Theatre together with
~ Dr. ‘Amonkar)—who had as per ‘the High Court’s view given evidence “s--
Jum v ~ a ‘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 freg.of charge -
- ‘or on payment, in our-view such user of Operation Theatret ogether with the facilities attached thereto would not have beem 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 respondentplaintiff ‘obtained an interim injunction) the respondent’ plaintiff had no servant of his own attached to the suit‘cabin but he was getting the services fromthe members of the Hospital staff in the matter of sweep- ing, cleaning and dusting of his cabin, receiving his patients in the.
-, common waiting room and ushring them into his cabin for which no ; separate payment was being. made by him. Were he an independent «
-. Heensee of the suit cabin and not attached-to the Hospital such services
" “a aa
.. MM. AMONEAR ¥. S.A. JOHARI (Tulzapurkar-J.) oO 663 oe would not shave béen made available to him free of charge. -
+s
In ourView | the aforesaid broad features emergitig from the evidence ‘on record clearly Support the: appellants—defendants’ case: , that thé user of the suit cabin-was allowed to. the respondent—plaintiff - not on leave and licence basis but because of his attachment as Honou-’
rary Surgeon to Dr.;Amonkar Hospital. Such being our “conclusion on the factital issue it is un-necessary for us to. deal with or discuss the .° - other two semj—legal i issues that were argued before us in these se appeals.”
We are clearly of the view that the High Court was not right in’ 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. oe
?
Appeals allowed. “
Q