S.K. Desai, J.
1. The writ petition is by the aggrieved opponent in Ejectment Application No. 104/E of 1984. The said application had been filed by the landlord who is the respondent before me. The landlord's claim was that he had given certain premises on licence to the occupant in April /May, 1973. Further according to the landlord the occupant had requested for permission to stay in the premises for a limited period in order to secure medical treatment for his wife. The occupant's case, as revealed in the points of defence, is that he was in occupation of the premises since December, 1971, and that he was paying Rs. 15/- per month for the room he was exclusively occupying. It was claimed by the respondent that the landlord was not issuing any receipts in respect of the said payment and that a similar practice was followed by the landlord for other tenants/occupants. The opponent also claimed to have given a deposit of Rs. 2,000/- (two thousand) to the landlord at the time when he was given permission to stay in the room.
2. By subsequent amendment of the points of defence the occupant also took up the plea of tenancy in the alternative since he was claiming to be in exclusive possession of the room. At the trial two preliminary issues were framed by the trial Judge and the claim of the occupant was negatived on both. It was held that he was neither a tenant in respect of the said room nor a protected licensee. The factual conclusions of the trial Judge were against the occupant on almost all points.
3. The aggrieved opponent carried the matter further and the Appellate Bench of the Small Causes Court dismissed the appeal summarily. It opined that the trial Judge has considered all the evidence and that his conclusions on the pleas of the occupant were correct and proper. It agreed with the trial Judge that the occupant had failed to prove his case. In the result, the appeal was summarily dismissed.
4. It is now well settled that this Court ordinarily does not reappraise the evidence, particularly when faced with concurrent decisions of the courts below who have given exclusive jurisdiction to dispose of the matters between landlord and tenant.
5. In the instant case, however, I am compelled to observe that judgment of both the courts below are unsatisfactory and reveal approaches which are required to be critically commented upon.
6. To take two examples from the decision of the trial Judge. The trial Judge seems to be under the impression that the was deciding a summary proceeding and could decide such proceedings in a summary manner. He has opined further that it did not matter since it was a summary proceeding whether the landlord gave or did not give evidence in the matter. In these matters issues are framed and full evidence is permitted to be led. Any party aggrieved by the decision of the Single Judge on vital issues can appeal to the Bench of the Small Causes Court. By a subsequent amendment the right of party to agitate the issue over again by filing a substantive suit, has been taken away. The approach of the trial Judge as revealed in these observations is wholly wrong. Summary matters cannot be dealt with arbitrarily or capriciously ignoring basic principles of the law of evidence. The Judge is also in clear error when he observes that it did not matter whether the landlord stepped in the box or not. It was possible for the Court to hold that no adverse inference should be dawn by reason of non-examination of the landlord, who in the present case was, at the relevant time, an old man of 95 years. This could be because the Court accepted the landlord's case that all conversations and agreements were not personally or exclusively with the landlord but with his son who was also his Constituted Attorney and who had stepped in the box. The Court must give a finding, in the first place, whether the talks were with the landlord or with the attorney or with both. It is only after such finding is given that the question of drawing an adverse inference would arise. It is to be regretted that Judges in the Small Causes Court dealing with vital matters seem unable to appreciate or follow proper principles of the law of evidence.
7. On another aspect also the trial Court has, in my opinion, not properly appreciated the evidence led in the matter. The occupant (I deliberately use the word 'occupant' as his claim to be a tenant or protected licensee was being adjudicated upon) in addition it examining himself, examined one Shaikh Abdul Aziz Mohammed Yakub as his second witness. The person claimed to be residing in this very building viz. Building No. 18 since 1953. He also claimed that he was paying rent to the landlord, but no rent receipts were being issued. There was no cross-examination of witness two points. If there is no cross-examination not even a cursory one, then the evidence given must be accepted on the footing that is has not been challenged. If so, then the trial Judge must be regarded to be totally in error when he observes that since some counter-foil rent books were produced by the landlord's Constituted Attorney, it is established that the landlord was issuing rent receipts in respect of the entire premises. Indeed, the approach of the trail Court is, in my opinion, casual, superficial and thoroughly immature.
8. When the matter was taken to the Appellate Bench, the Appellate Bench has treated the matter equally perfunctorily. Perhaps it may be assumed that proper arguments were not advanced before the two courts below. That, however, is just speculation and does not relieve the Court from its duty to consider the evidence on record properly, impartially and thoroughly.
9. With this sort of judgments of the courts below, it becomes obligatory on the High Court even exercising its limited powers of superintendence under Article 227 of the Constitution to go through the evidence and to consider whether the answers given to the issues were proper or not.
10. The principal issue to be considered is whether the writ petitioner has been able to prove that he is a protected licensee as provided by the amendment of the Rent Act i.e. a licensee within the definition of section 5(4-A) read with section 15A of the Bombay Rent Act. Difficulty is caused by the fact that the evidence led by both the sides has been some what sketchy, nebulous and leaving may areas and aspects uncertain and incomplete. Some valid observations have, however, been made by the two courts below. In the first place, it has been commented, and rightly so, that in the initial notice given on behalf of the petitioner it was not specifically mentioned that he was occupying the premises since December 1971 or that any talk had taken place on 8th December, 1971 is subsequently specified in the points of defence. In the second place, the present address has been shown in the ration card issued to the writ petitioner only May, 1973. There is nothing on record to indicate as to she after the petitioner and his wife had come to the premises in December, 1971 or there abouts, this change of address was effected as late as in May, 1973 when much earlier the name of the wife and the son had been added on this very ration card. Mr. Rizvi was unable to give any acceptable explanation even in course of arguments.
11. Ultimately I think I may have to answer the issues on considerations of burden of proof. It is absolutely necessary for the occupant to establish positively and decisively that he was in the premises prior to February 1973. It is true that the writ petitioner has stated so in his own evidence, which has, to a certain extent, been corroborated by his own witness Shaikh Abdul Aziz Mohammed Yakub. However, apart form his oral statement, the change effected in the address on the action card stands clearly against the claim of the writ petitioners. After this lapse of time, it would not at all be proper to remand the matter to allow the parties to lead further and better evidence. Add, indeed, if Advocates were to take little more care to ensure that proper evidence is led and carry out their duties conscientiously then the Court would not be placed in the embarrassing position of considering, a remand today. However, no useful propose will be served by making a remand alter twenty years. On the other hand it has to be noted that there have been certain very important contradictions on the evidence led on behalf of the landlords in his cross-examination the landlord's son and Constituted Attorney has clearly contradicted himself by making inconsistent statements as regard the premises which were allowed to be occupied by the writ petitioner. Initially it was his case that he (the son) was occupying the very premises till the wit petitioner was put in occupation thereof on humanitarian grounds. Subsequently, it appears to have been stated by the very witness that the premises were vacant for a long time before possession thereof was given to the writ petitioner. To a certain extent such contradictions arise from the fact that trial of matters in the Small Causes Court does not take place form day to day and witness and even Advocates and presumably the Court forgets what had been recorded on earlier occasion when the trial as resumed after a gap of few days.
12. I think, ultimately the decision given by the courts below however unsatisfactory, will have to be confirmed, but not on the footings which have appealed to them. If overall evidence is unsatisfactory, then the person on who the onus lies to establish the case must fail. Fir both the issues, the burden of proof was clearly on the writ petitioner. On that limited ground, I am inclined to discharge the rule and not interfere with the conclusions reached nu the Single Judge which were confirmed in appeal by the Appellate Bench.
13. When the matters were admitted on 16th January, 1981, I had issued rule but directed the trial Court to proceed with the application and pass the final order. However, a further direction was given that the final order was not to be executed till the rule was disposed of. I am informed that the necessary order has been made in favour of the landlord. Mr. Rizvi applies for time to vacate.
14. As far s the time to be given to the petitioner is concerned, I am of the opinion that the petitioner's case that he had paid a substantial deposit to the landlord cannot be rejected, though he may not held any receipt in respect of the payment. The argument advanced before the Appellate Court that ordinarily landlords do not part with premises on humanitarian grounds was too lightly brushed aside by the Appellate Court. Keeping all these considerations in view, I think the stay of execution should be continued for sufficiently longer time. But this must be on the same terms viz. that the writ petitioner will go on paying Rs. 15/- per months to the landlord. Mr. Rizvi, learned Counsel for the petitioner states that amounts at this rate have been deposited in the Small Causes Court. The respondents landlords are permitted to withdraw these amounts without prejudice to their rights or contentions on the same conclusion viz. that the petitioner will go on paying at the rate of Rs. 15/- per month in the Small Causes Court, which amounts can be withdrawn by the respondent.
15. I direct while discharging the Rule that the order in the Ejectment application will not be executed against the writ petitioner upto 31st December, 1986. This, however, will be an undertaking to be filed by him on or before 30th September, 1985 in this Court to the effect that he will hand over possession of the premises to he landlord on or before 31st December, 1986 and will pay amounts at the rate of Rs. 15/- per month till that date. The amount for each month to be paid on or before the 10th day of the following month. If undertaking as specified is not filed by 30th September 1985, copy of the undertaking to be served on the landlord and landlord's Advocate on record in the trial Court.
16. Parties are directed to bear their own costs of this writ petition.