V.S. Kotwal, J.
1. The suit premises consist of a small garage located on Telang Road in Matunga area of this metropolitan city. The respondent herein claims to be the tenant of the suit premises and he further claims that he had given front portion of the said garage to the petitioner herein on leave and licence basis for conducting a tailoring shop since the parties were known to each other for some time. It is categorically stated that no lease-hold rights were created in favour of the petitioner on any count. The licence was revoked by the plaintiff by the notice dated 22nd August, 1969 under which the petitioner was called upon to hand over vacant possession of the suit premises and on his failure to comply with the said demand, the plaintiff that is, the respondent herein filed Ejectment Application No. 707/E/69 in the Small Causes Court at Bombay.
2. The defences were filed by the petitioner raising several contentions, the foremost of which is more relevant, is to the effect that in reality he was the tenant of the plaintiff and the claim of creation of leave and licence was denied. The other aspects of the contentions are not very material.
3. A preliminary issue was then framed by the learned trial Judge as to whether it was proved by the petitioner herein, that is, the original defendant that he is the tenant of the suit premises and as such, he was entitled to the protection under the Rent Act. On consideration of the material that was tendered before the learned Judge, he answered the issue in affirmative in favour of the defendant declaring him to be the tenant, with the consequence that the suit was to be heard on merits on the other issues.
4. Appeal No. 423/E/73 was directed against the said decision on the preliminary issue when the finding that the defendant was a sub-tenant was under challenge.
5. The learned Judges of the Appellate Bench of the Small Causes Court on a careful consideration of the material and the rival contentions came to an unmistakable conclusion, disagreeing with the finding of the trial Court that, it was not established that the defendant was a sub-tenant, but on the contrary, the plaintiff's claim of leave and licence having been created in favour of the defendant was upheld. In effect, therefore, the said preliminary issue was decided against the defendant by the order dated 16th July, 1980 under which in view of that finding on the said preliminary issue, the original ejectment application was sent back to the trial Court for passing final and formal orders. It is this order that is being impugned in this petition under Article 227 of the Constitution.
6. Shri R.T. Walawalkar, the learned Counsel for the petitioner-original defendant, strenuously submits that the finding arrived at by the learned trial Judge fully supported by the material and as such, it should not have been upset by the Appellate Bench. According to the learned Counsel, the theory propagated by the plaintiff in assuming the capacity in himself as a tenant of the suit premises can be exposed to falsity by a mere cursory reading of the evidence, inasmuch as, it is practically impossible to believe that lease hold rights were created in favour of the plaintiff vis a-vis the said garage by a person no other than his mother and further the document in that behalf was signed by his daughter. The learned Counsel further submits that the learned trial Judge was justified in holding that since no formal agreement of leave and licence was executed, it should be equated to mean that the said plea raised by the plaintiff was unacceptable. The learned Counsel also assailed the finding of the lower Appellate Bench on some of the counts. All these submission are countered by the learned Counsel on behalf of the respondent who has adopted the reasons assigned by the lower Appellate Court.
7. In the first instance, the lower Appellate Bench after considering the material on record, has recorded a finding on fact that in reality it was a case of leave and licence and no tenancy rights were created. There is obvious limitation on the jurisdiction of this Court while dealing with the matter under Article 227 of the Constitution. Apart from that, the said finding is also well-justified as it is supported by cogent reasons.
8. It is true as pointed out by the learned trial Judge that no formal document came into existence as claimed to have been created by the plaintiff. The lower Appellate Bench was aware of this position and has properly addressed itself to that aspect and has rightly held that the mere absence or omission in that behalf cannot be straight way equated with the view that in fact there was no leave and licence agreement. A couple of circumstances are quite formidable against the petitioner which have been rightly relied upon by the lower Appellate Bench and which unfortunately are not properly considered by the Court of the first instance. The foremost is that when the notice for revocation of the licence was issued by the respondent herein to the petitioner on 27th August, 1969 and when it was admittedly received by the petitioner no reply has been sent by the petitioner. Now, the relevance lies in the fact that there is a positive assertion in the said notice that the petitioner was on the premises by virtue of the leave and licence agreement and no other capacity and thereby any prospective contentions about the lease hold rights have impliedly denied therein. Inspite of this assertion, there is absolutely no demur or protest in that behalf made by the defendant when admittedly he has received the notice. This circumstance has its own relevance and has rightly been relied upon by the Appellate Bench. The next circumstance is equally formidable though perhaps, a little more in gradation. The respondent herein while in the witness box makes a positive assertion on oath that right from the inception when the petitioner was inducted as a licensee under the said agreement, the key to the said portion in his occupation, always remained with him, that is, with the plaintiff. Now the striking feature is that this assertion on oath has not been challenged on behalf of the petitioner in any manner in that the plaintiff was not cross-examined. The lower Appellate Bench has correctly assessed the evidence in that behalf and as rightly observed that this unchallenged evidence indicates that the plaintiff had ever lost control over the premises which is a strong pointer in favour of existence of leave and licence agreement and negatively speaking, it is an equally formidable pointer to destroy the claim of tenancy. Unfortunately, both these important features are not properly considered by the trial Court at all. It is true that the lower Appellate Bench has relied on a circumstance to the effect that when an application was made by the plaintiff to expedite the ejectment application, wherein it was incorporated in that application that only front portion of the premises was given in occupation of the defendant, still, when that application for early hearing was opposed to by the defendant, this recital in the said application pertaining to the front portion only being in his occupation was not specifically denied. No doubt, this can be considered as a circumstance. Shri Walawalkar, the learned Counsel for the petitioner is justified in submitting that this circumstance cannot be a conclusive one and he is equally justified in submitting that if a recital is incorporated in an application merely for expediting the application, then, the other side may not be interested in denying the allegation on merit which would be properly canvassed in the main application. This submission is quite justified and, therefore, I am not inclined to place much reliance on that circumstance. Shri Walawalkar, the learned Counsel, as stated earlier, severely criticised the conduct of the respondent. According to him, the theory as made out by the plaintiff in his evidence that he became the tenant of the garage through his mother and the document was signed by his daughter is nothing but a falsehood. It is true that the learned trial Judge also did not agree with the said assertion of the plaintiff and expressed a serious doubt on the credibility of that part of his statement. However, even assuming that the said part of his case is unacceptable. Still, it would not change the complexion of the matter if otherwise, the plaintiff has made out a proper case about the existence of leave and licence agreement. His own capacity by itself may not be relevant, though, the more relevant feature would be whether the petitioner was inducted on the premises temporarily only under the leave and licence agreement or whether any tenancy rights were created.
9. An attempt was made at the lower appellate stage on behalf of the petitioner to adduce additional evidence in the shape of rent receipts which are alleged to have been executed by the plaintiff in favour of the other tenants in the building. This was obviously with an object to falsify the plaintiff's claim that no rent receipts were issued to any one, not even the other tenants. This motion was rejected since it was not quite relevant to the issue involved and I am not inclined to disagree with the said finding. I am, however, tempted to observe that implicit in the said motion is a feature to the effect that the petitioner had not suggested nor was he inclined to produce any receipts which could have been executed in his favour by the plaintiff if he was really inducted as the tenant. The implication would be that if rent receipts could be issued by the plaintiff in favour of the other tenants, then, non-issuance of such rent receipts in favour of the petitioner would, on the contrary, though to a limited extent only, support, the theory of leave and licence agreement rather than supporting the theory of lease hold rights.
10. Having regard to all these features, I am unable to upset the finding of fact recorded by the lower Appellate Bench which is supported by cogent reasons and it is further supported by the material on record, as against which, the learned trial Judge has not considered several material features. Since there is no error apparent on the face of the record, no interference would be justified.
11. In the result, the rule is discharge with no order as to costs.