Skip to content


Miss Mani J. Desai Vs. Gayson and Co. Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 2299 of 1969
Judge
Reported in(1971)73BOMLR394
AppellantMiss Mani J. Desai
RespondentGayson and Co. Pvt. Ltd.
DispositionAppeal dismissed
Excerpt:
.....house rates control act, 1947, he cannot proceed against the occupant under section 41 of the presidency small cause courts act, 1882. - - the learned judge considered the oral and documentary evidence and came to the conclusion that the petitioner failed to prove the agreement of leave and licence. then the learned trial judge considered the other circumstances like the periodic payment of consideration and the fixed period for which the premises were given by the petitioner to the respondent. a few equivocal circumstances, like payment of rent or notice to quit cannot be considered as conclusive for holding that the transaction is a lease and not a licence......mr. pravinchandra shah, who appears for the petitioner has challenged the finding of the learned trial judge on the ground that the learned trial judge has not approached the point at issue between the parties properly. a true reading of the agreement in the light of the surrounding circumstances and the facts would show that the parties intended to create an agreement of leave and licence. even in law the petitioner as a tenant could not create a valid sub-lease in favour of the respondent. the evidence also shows that exclusive possession was not given to the respondent and the petitioner retained the duplicate key which fact showed that she had control over the two cabins given to the respondent.4. but mr. shah's grievance cannot be redressed under article 227 of the constitution......
Judgment:

Bhasme, J.

1. The petitioner had filed an application under Section 41, Chapter VII of the Presidency Small Cause Courts Act for ejecting the respondent, a private limited company, from the premises on the ground that the licence granted by her was revoked. The Court had rejected that application and by this petition the order of rejection is challenged as erroneous in law.

2. It appears that the parties have been litigating for quite some time. The facts disclose that on July 10, 1964 the petitioner put the respondents in possession of office premises consisting of two cabins. An agreement styled as Leave & Licence was executed between the parties. It was for a period of 11 (eleven) months. On June 9, 1965 another agreement in the same form amounting to the renewal of the earlier licence was also executed. On April 9, 1966 the petitioner by a notice revoked the licence. It is her case that in the month of May 1966 the respondents were given one month's time to vacate the suit premises. On June 11, 1966 the petitioner saw that the respondents had changed the lock of which she had a duplicate key. The petitioner broke into the cabin and put her own lock. As a result of the disputes between the parties, the police at the instance of the respondents started proceedings under Section 145 of the Criminal Procedure Code. The Additional Chief Presidency Magistrate on June 22, 1967 upheld the possession of the respondents and the petitioner approached the High Court in revision. On September 27, 1967 this Court set aside the order passed by the Additional Chief Presidency Magistrate. The respondents challenged this order before the Supreme Court successfully and the Supreme Court by its order dated March 24, 1968 set aside the order passed by this Court and restored the order passed by the Additional Chief Presidency Magistrate, After the Supreme Court order respondent No. 1 got back possession of the two cabins on July 2, 1968. On July 6, 1968 the petitioner gave another notice revoking the licence. By reply dated July 11, 1968 respondent No. 1 asserted that it was in lawful possession of the two cabins under the order of the Supreme Court. On July 15, 1968 the petitioner filed the application under Section 41 claiming the ejectment of the respondent on the ground that the licence was revoked by her. The respondent filed the defences and inter alia claimed to be the sub-tenant of the petitioner. Despite the written agreement of Leave & Licence the respondent stated that the parties intended to create a relationship of landlord and tenant. Respondent was allowed to amend the defences on July 9, 1969. One of the issues framed was about the alleged sub-tenancy set up by the respondent. The learned Judge considered the oral and documentary evidence and came to the conclusion that the petitioner failed to prove the agreement of Leave and Licence. Despite the wording of the written agreement the parties intended to create a lease within the meaning of Section 105 of the Transfer of Property Act. The learned Judge also found that the sub-lease was obviously created contrary to the prohibition contained in Section 15 of the Rent Act. Because it was a case of unlawful sub-letting, in his view, the parties were in pari delicto and no relief could be given to the petitioner even after recording a finding that the sub-letting was illegal. In the result the learned Judge dismissed the application.

3. Mr. Pravinchandra Shah, who appears for the petitioner has challenged the finding of the learned trial Judge on the ground that the learned trial Judge has not approached the point at issue between the parties properly. A true reading of the agreement in the light of the surrounding circumstances and the facts would show that the parties intended to create an agreement of leave and licence. Even in law the petitioner as a tenant could not create a valid sub-lease in favour of the respondent. The evidence also shows that exclusive possession was not given to the respondent and the petitioner retained the duplicate key which fact showed that she had control over the two cabins given to the respondent.

4. But Mr. Shah's grievance cannot be redressed under Article 227 of the Constitution. Unless he shows that there is an error of law committed by the learned trial Judge, this Court cannot seek to correct any errors. This Court will not reappreciate the evidence and then disturb the finding of fact recorded by the learned trial Judge.

5. Mr. Shah has taken me through the judgment of the trial Judge. He objected to the finding of the learned trial Judge that exclusive possession was given to. the respondent. According to Mr. Shah it is the petitioner's case that she had retained the duplicate key with her and even the recitals in the leave and licence agreement showed that she had the right to enter the premises any time for inspecting the same. These facts would show that exclusive possession was not given to the respondent. But the learned trial Judge inspected the premises and made his own notes which are marked exh. D, The position of the two cabins and the position of the third cabin was considered by the learned trial Judge. He inspected the premises and considered such facts as were brought to his notice by the advocates of the parties. He rightly observed that the inspection of the premises on the date on which he inspected them would not give a clear picture for recording correct findings about the state of exclusive possession. As in proceedings under Section 145, Criminal Procedure Code the petitioner for some time got back possession and thereafter was compelled to restore the same to the respondent, much reliance cannot be placed upon the state of the premises as found at the date of the Court's inspection. Even then the learned trial Judge tried to find out whether or not it was possible for the petitioner to give exclusive possession of the two cabins to the respondent. After considering the relevant recitals of the agreement of Leave and Licence and also the oral evidence of the parties the learned trial Judge has- recorded a finding that the exclusive possession was given by the petitioner to the respondent. Then the learned trial Judge considered the other circumstances like the periodic payment of consideration and the fixed period for which the premises were given by the petitioner to the respondent. The learned trial Judge also considered the most important circumstance which is apparently in favour of the petitioner. Under Section 15(1) creation of sub-tenancy is prohibited. It was submitted on behalf of the petitioner that the parties must have intended to create only a licence and not a sub-lease contrary to the provisions contained in Section 15 of the Rent Act. But that circumstance is not decisive for holding that in all such cases the transaction will not be a sub-lease but only a licence. After applying the usual tests the learned trial Judge has recorded a finding that the transaction was intended to be a lease within the meaning of Section 105 of the Transfer of Property Act. Merely because, it is unlawful sub-letting it cannot be considered as a lawful contract of leave and licence. In the case of a lawful contract of leave and licence the licencee's possession becomes wrongful when the licence is revoked. In the case of an unlawful sub-letting, the occupants' possession is unlawful at its inception. In such a case the petitioner cannot succeed under Section 41 of the Presidency Small Cause Courts Act. The petitioner will have to pursue her remedy elsewhere by filing a suit in a Court of competent jurisdiction.

6. Mr. Shah tried to rely upon certain observations in Ramjibhai Virpal v. Gordhandas (1954) 56 Bom. L. R. 865 about the test to be applied while judging the nature of the transaction. This Court rightly observed in that case that the intention of the parties is a decisive factor. Even the words of the written contract must be given due weight but the Court must consider the substance of the transaction. Mr. Shah also relied upon a recent decision of the Madras High Court reported in. Lakshmiammal v. Sivakamu Natesan AIR [1970] CJ 410. The learned Judge of the Madras High Court M. Natesan, J. while enumerating the recognised tests, has stated that the intention of the parties has to be ascertained on a consideration of all the relevant provisions in the agreement. A few equivocal circumstances, like payment of rent or notice to quit cannot be considered as conclusive for holding that the transaction is a lease and not a licence.

7. But I find that the statement of law as contained in these two decisions is rightly applied to the facts of the present case by the learned trial Judge. He has not committed any error of law.

8. In the result the application fails. The rule is accordingly discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //