ssm 1 wp1654. & 1655.2000.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 1654 OF 2000

WITH

WRIT PETITION NO. 1655 OF 2000

Shri Raghuvir Prasad Kalicharan Kaithwar,

(Since deceased, through His LRs.)

1a) Kamala Raghuvir Kaithwas

of Bombay, carrying on Business
at Plot No. 18, Radha Kunj Road,
Opp. Bharat Glass Factory,
Mahul Road, Chembur, Bombay-400069.

1b) Mr. Ajay Raghuvir Kaithwas

Vishvashakti Building, Room No. 12,
Peston Sagar, Road No. 4,
Mumbai-400089.

1c) Vijay Raghuvir Kaithwas,

Peston Sagar, Road No. 4,
Next to Rekha Mumbai.

1d) Smt. Archana Dinesh Ujgare,

Room No. 1 Ground Floor, Nikita Niwas-2,
Plot No. 176, Behind Chintamani
Complex, Sector No. 20, Belapur Gaon,
Navi Mumbai-400614. ….Petitioners.

Vs.

Hridainarain Rampakhan Pande,

Residing at Radha Kunj Road,
Opp. Bharat Glass Factory,
Chembur, Bombay-400 069. ….Respondent.

Mr. Pradeep J. Thorat a/w Ms. Aditi Naikare i/by Smt. Anupama B. Shah for
the Petitioners.
Mr. C.G. Gavnekar a/w Mr. Hiranandani for the Respondent.

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CORAM : A. S. GADKARI, J.
RESERVED ON : 2ND MARCH, 2020
PRONOUNCED ON : 12TH JUNE, 2020.

JUDGMENT:-

The Petitioner has taken exception to the common Judgment

and Order dated 20th November, 1999 passed in Appeal No. 427 of 1996 in

L.E. Suit No.251/579 of 1976 and Appeal No.480 of 1995 in R.A.D. Suit

No.6041 of 1979, by the Appellate Bench of the Court of Small Causes,

Mumbai, by present Petitions filed under Article 227 of the Constitution of

India.

2 Heard Mr. P.J. Thorat, learned counsel for the Petitioners and

Mr. C.G. Gavnekar, learned counsel for the Respondent. Perused the entire

record.

3 The facts giving rise for filing present Petitions can briefly be

stated as under:-

(i) The Respondent is the Owner/Landlord of the ‘Suit property’

i.e. a shed admeasuring 7 x 17 feet having roof of asphalt sheets and tinned

walls named and styled as ‘Shri Prakash Furniture’, situated at Plot No.18,

Radha Kunj Road, Opposite Bharat Glass Factory, Ghatkopar-Mahul Road,

Chembur, Mumbai-400 069.

(ii) It is the case of the Respondent that, he is the owner of the Suit

property. That, by an agreement dated 1st December, 1975 he gave the said

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Suit property to the Petitioner with articles, fitting etc. for conducting

business for a period of 11 months as per the terms mentioned therein. That,

the Petitioner agreed to pay Rs.110/- as monthly compensation or royalty

and Rs.1500/- as security deposit, being conductor of the said business. The

Petitioner failed to pay the monthly royalty or compensation from 1 st

February 1976 inspite of demand. The Respondent therefore, issued a notice

dated 17th August, 1976 and revoked and terminated the leave and licence

granted to the Petitioner. The Petitioner, through his Advocate gave reply

dated 30th August, 1976. The Petitioner in his reply contended that, no

business was given for conducting with articles and fittings and the suit

premises was in fact given on tenancy basis. The agreement of conducting

business dated 1st December, 1975 was a colourable document, not intended

to be acted upon. The Respondent addressed a rejoinder dated 29 th

September, 1976 to the said reply. The Respondent without prejudice also

contended that, the agreement dated 1st December, 1975 was otherwise also

expired by efflux of time on 31st October, 1976 and therefore, the Petitioner

was suppose to vacate the premises.

It is also the case of the Respondent that, though the suit

premises was given for conducting business of manufacturing furniture as

per the terms of agreement dated 1st December, 1975, the Petitioner had

started using the same for his residence and therefore, the Petitioner was

causing great loss and hardship to the Respondent. That, inspite of

termination of the said agreement by notice dated 17th August, 1976, the

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Petitioner did not hand over possession of the suit premises which the

Respondent was entitled to get back for breach of terms of agreement. It

was the contention of the Respondent that, even otherwise, the said

agreement had also expired by efflux of time and therefore, the Respondent

was entitled to seek ejectment of the Petitioner from the suit premises. The

Respondent therefore, filed L.E. Suit No.251/579 of 1976 on 21 st December,

1976 under Section 41 of the Presidency Small Cause Courts Act, 1882 (for

short, ‘PSCC Act’), as amended till the date of filing of the Suit for eviction

and decree against the Petitioner, to quit, vacate and to hand over peaceful

possession of the Suit property.

(iii) After receipt of summons, the Petitioner filed his Points of

Defence, on 6th June, 1977. It was the defence of the Petitioner that, the suit

premises was given by the Respondent to the Petitioner on tenancy basis at

the monthly rent of Rs.110/- without any articles or things therein and the

Petitioner was put in possession of the said suit premises thereof. That, the

said agreement dated 1st December, 1975 of conducting business on licence

was colourable and sham agreement and the terms and conditions of the said

agreement were not to be acted upon, save and except the payment of rent of

Rs.110/- which was stated to be compensation or royalty. That, the

Petitioner being tenant and in occupation of the suit premises, requested the

Trial Court to fix the standard rent. That, there was no furniture business in

the suit premises at the time it was let out to the Petitioner and the suit

premises is being used for residence with the permission and knowledge of

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the Respondent from very inception. The Petitioner denied that, he had

caused any loss or hardship as alleged by the Respondent. The Petitioner,

therefore, prayed to the Trial Court that, the Suit filed by the Respondent

may be dismissed with costs.

(iv) The Petitioner thereafter filed R.A.D. Suit No.6041 of 1979 on

26th November, 1979 for declaration that, the Petitioner is a tenant in respect

of the suit premises and for fixation of standard rent at the rate of Rs.45/- per

month. It is the case of the Petitioner that, he was residing and also carrying

out business in the suit premises. That, the Respondent being the owner and

landlord of the suit premises, wanted to let out the suit premises on tenancy

basis at the rate of Rs.110/- per month. The Petitioner contacted the

Respondent through a common friend and the Respondent agreed to let out

the suit premises on tenancy basis to the Petitioner. The Respondent

suggested the Petitioner that, the Petitioner will have to sign an agreement

for conducting business in order to circumvent the provisions of the Bombay

Rent Act and also the provisions of the Land Acquisition Act. That, the

Respondent had agreed, not to act upon the said agreement labeled as

‘agreement for conducting business’ as long as the Petitioner paid rent

mentioned therein. The Petitioner was in dire need of premises for

residence-cum-business and therefore, he agreed to the suggestion of the

Respondent for signing the agreement, which was wrongly labeled and

described as an agreement of conducting business. The Petitioner signed the

agreement of conducting business on 1st December, 1975. It is contended by

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the Petitioner that, the said agreement was a sham and colourable agreement

and it was not to be acted upon, except the payment of Rs.110/- per month,

as the Respondent wanted to avoid the provisions of Rent Act. The

Petitioner claimed that, the said premises was given to him on rental basis

and he was and is a tenant of the Respondent in respect of the suit premises.

The Petitioner was a protected tenant under the provisions of Bombay Rent

Act. The Petitioner therefore, filed the said Suit for declaration as stated

hereinabove.

(v) As per the record and observations made by the Trial Court, the

Respondent herein filed written statement in the said Suit on 8th January,

1981. The main contentions in the written statement of the Respondent are

the same as per his pleadings in his plaint i.e. in L.E. Suit No.251/579 of

1976, which are narrated hereinabove. With the said averments, the

Respondent prayed for dismissal of the said Suit.

(vi) On the basis of pleadings of the parties herein in both the Suits,

the Trial Court framed issues in L.E. Suit No. 251/579 of 1976 on 19 th

August, 1988 and in R.A.D. Suit No.6041 of 1979 on 17 th June, 1991. That,

the Advocate appearing for the respective parties submitted before the Trial

Court that, common evidence be recorded in both the Suits and accordingly,

the Trial Court recorded common evidence in both the Suits.

(vii) The Trial Court after recording evidence and after hearing the

parties to the said Suits, by its Judgment and Order dated 14th July, 1995

dismissed L.E. Suit No. 251/579 of 1976 filed by the Respondent. The Trial

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Court decreed R.A.D. Suit No.6041 of 1979, filed by the Petitioner and

declared that, the Petitioner Raghuvir Prasad K. Kaithwar was the monthly

tenant in respect of the suit premises. The Trial Court has held that, the

Respondent has failed to prove that, he gave the suit premises to the

Petitioner for a period of 11 months under an agreement dated 1 st December,

1975 for monthly compensation. That, the Petitioner has proved that, he was

a monthly tenant in respect of the suit premises. The Petitioner has further

proved that, the agreement dated 1st December, 1975 is a sham and

colourable agreement.

(viii) Feeling aggrieved by the Judgment and Decree dated 14 th July,

1995 passed by the Trial Court, the Respondent preferred Appeal No.427 of

1996 in L.E. Suit No.251/579 of 1976 and Appeal No.480 of 1995 in R.A.D.

Suit No.6041 of 1979, before the Appellate Bench of the Court of Small

Causes at Mumbai. The Appellate Court, by its impugned Judgment and

Order dated 20th November, 1999 has allowed both the Appeals and decreed

L.E. Suit No.251/579 of 1976 in favour of the Respondent and held that, the

Respondent is entitled to recover possession of the suit premises from the

Petitioner. The Appellate Court further directed the Petitioner to hand over

vacant and peaceful possession of the suit premises to the Respondent within

stipulated period as mentioned therein. By the impugned Judgment and

Order, the Appellate Court has dismissed R.A.D. Suit No. 6041 of 1979 filed

by the Petitioner.

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4 Mr. Thorat, learned counsel for the Petitioners submitted that,

the agreement dated 1st December, 1975 between the Petitioner and the

Respondent was an agreement of conducting business and therefore, Suit

under Section 41 of the PSCC Act for eviction of Petitioners is not

maintainable before the Court of Small Causes. In support of his contention,

he relied on three decisions of this Court, viz. (i) Mohammed Hisiat Vs.

Ebrahim Hasan in Civil Revision Application No.132 of 1981 dated 6th

August, 1982, (ii) Radhabai w/o. Balkrishna Gangaram Chavan & Ors. Vs.

Smt. Parvati Mahadeo Pawar & Ors., WP No.5220 of 1986, dated 8th

January, 1988, and (iii) Smt. Anusuyabai Narayanrao Ghate Vs. Smt.

Maktumbi S. Nadaf reported in 1999 0 Supreme (Mah) 120 : 199 2 BomCR

374 : 1999 1 MhLJ 836. He further submitted that, this Court may infer and

interprete the said agreement dated 1st December, 1975 as an ‘Agreement for

Tenancy’ created in favour of the Petitioner. He submitted that, the said

agreement was in fact an agreement for tenancy, executed ostensibly under

the guise of ‘Conducting Agreement’ or ‘Licence Agreement’. By relying on

a decision of the Supreme Court, in the case of C.M. Beena & Anr. Vs. P.N.

Ramchandra Rao, reported in (2004) 3 SCC 595, he submitted that, there are

distinguishing features in a ‘Conducting Agreement’ and ‘Licence

Agreement’. That, user of nomenclature relating to either terms by itself is

not decisive. He also relied on a decision of the Hon’ble, Supreme Court in

the case of Dnyandeo Sabaji Naik & Anr. Vs. Pradnya Prakash Khadekar &

Ors., reported in (2017) 5 SCC 496, in that behalf.

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Mr. Thorat, further submitted that, the Respondent has given an

admission in his evidence and on his own admission, the said agreement

dated 1st December, 1975 is a ‘Tenancy Agreement’ and not a ‘Conducting

Agreement’. Therefore, Section 41 of the PSCC Act will not have

application while instituting a Suit by the Respondent in the Court of Small

Causes. Mr. Thorat, also drew my attention to the cross-examination of the

Respondent, wherein according to him, the Respondent has given certain

admissions.

He further submitted that, the Petitioner has also raised a plea

that, he took the premises for residence and the said fact can clearly be

discerned from the reply given by the Petitioner to the first notice issued by

the Respondent. In rejoinder to the arguments advanced by Mr. Gavnekar,

the learned counsel for the Respondent, Mr. Thorat by placing reliance on a

decision of the Supreme Court in the case of Baldev Singh & Ors. Vs.

Manohar Singh & Anr., reported in 2006 (5) Mh.L.J. 634,submitted that,

inconsistent pleas can be raised by the Defendant in the written statement,

though the same may not be permissible in the case of plaint. He submitted

that, therefore the plea taken by the Petitioner in his written statement

contending that, the agreement in question was for conducting business and

also claiming tenancy, is thus permissible.

Mr. Thorat, submitted that, the Appellate Court has committed

grave error in not appreciating these aspects while allowing the Appeals.

Upon a query raised by this Court, Mr. Thorat on instructions, submitted

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that, as of today the Petitioners are in possession of the suit premises and

nobody else has been put in possession thereof. He therefore prayed that,

the impugned Judgment and Order may be quashed and set aside by

allowing the present Petitions.

5 Mr. Gavnekar, learned counsel appearing for the Respondent

submitted that, the Petitioner has taken the only plea of ‘tenancy’ before the

Trial Court, so also before the Appellate Court. He did not contest the Suit

on the ground that, by the said agreement dated 1 st December, 1975, a

licence for conducting business was never created in his favour and

therefore, both the Courts below confined themselves to the issue of

‘tenancy’ only. He submitted that, the Trial Court has recorded a finding

that, the said agreement dated 1st December, 1975 was a ‘Conducting

Agreement’. Mr. Gavnekar, without prejudice to his main plea and

contentions submitted that, assuming for the sake of argument, the said

agreement was a Conducting Agreement, then in that event, the Court of

Small Causes would not have jurisdiction to entertain the Suit filed by the

Petitioner for declaration of tenancy and the plaint of the Petitioner ought to

have been returned for presentation before the Civil Court. In support of his

contention, he relied on a decision of the learned Single Judge of this Court

in the case of Kasturi Shetty & Ors. Vs. A.S. Bhandary, passed by this Court

in Original Side Suit No. 3224 of 1984 dated 27 th January 2009. He further

submitted that, plea of tenancy and conducting business are totally

inconsistent and self destructing pleas to each other and cannot be pleaded

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simultaneously by the Petitioner. He submitted that, after termination of

agreement by the Respondent by his notice dated 17 th August, 1976, the

occupation of the Petitioner in the suit premises would be as a ‘gratuitous

licensee’. He submitted that, the pleadings of the Petitioner cannot be

confined to Section 5(4A) of the Bombay Rent Act and in view of the

amendment of 1976 to Section 41 of the PSCC Act, the Small Causes Court

will have jurisdiction to try and entertain the Suit filed by the Respondent for

eviction of Petitioner after the licence period is over and therefore, the

Appellate Court is therefore right in entertaining the Appeal. He submitted

that, by virtue of the said agreement dated 1 st December, 1975, what was

ultimately given was only a ‘licence’ for conducting business to the

Respondent by the Petitioner and it is not an agreement creating tenancy in

favour of the Respondent. He submitted that, the Full Bench of this Court in

the case of Prabhudas Damodar Kotecha & Anr. Vs. Smt. Manharbala

Jeram Damodar & Ors., reported in 2007(5) Mh.L.J. 341, has interpreted

the said relevant provisions and in unequivocal terms has held that, Suit by

licensor against a gratuitous licensee is tenable before the Presidency Small

Cause Court under Section 41 of the PSCC Act. He further submitted that,

the said decision of the Full Bench of this Court has been confirmed by the

Hon’ble the Supreme Court. He produced on record the decision of the

Supreme Court in the case of Prabhudas Damodar Kotecha & Ors.Vs.

Manharbala Jeram Damodar & Anr., reported in (2013) 15 SCC 358.

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Mr. Gavnekar, submitted that, in the present case, the period of

licence expired on 30th October, 1976 and thereafter, the Petitioner filed Suit

on 21st December, 1976. He further submitted that, the judgments namely

(i) Mohammed Hisiat (Supra), (ii) Radhabai w/o. Balkrishna Gangaram

Chavan & Ors. (Supra), and (iii) Smt. Anusuyabai Narayanrao Ghate

(Supra) relied upon by Mr. Thorat deals with a situation prior to the 1976

amendment to Section 41 of the PSCC Act and therefore, are not applicable

to the present case in hand. While reiterating his contention, he submitted

that, by the said agreement dated 1st December, 1975 a licence was granted

in favour of the Petitioner for conducting business in the suit premises and

therefore, suit under Section 41 of the PSCC Act is maintainable. Mr.

Gavnekar further submitted that, there are no perverse findings pointed out

by the learned counsel for the Petitioner from the impugned Judgment and

Order and therefore, interference of this Court under Article 227 of the

Constitution of India, with it is not necessary. He therefore prayed that, the

present Petitions may be dismissed.

6 At the outset, it is to be noted here that, the Supreme Court in

the case of Prabhudas Damodar Kotecha & Ors.(Supra) has in great detail,

analysed the provisions of Section 5(4A) of the Bombay Rent Act, Section

52 of the Indian Easements Act and Section 41 of the PSCC Act. Paragraph

Nos. 54, 57 and 59 of the said Judgment reads as under:-

“54. We have already indicated the expression “licence” as

reflected in the definition of “licensee” under sub-section (4-A)

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of Section 5 of the Rent Act and Section 52 of the Easements

Act are not pari materia. Under sub-section (4-A) of Section 5,
there cannot be a licence unsupported by the material
consideration whereas under Section 52 of the Easements Act
payment of licence fee is not an essential requirement for
subsistence of licence. We may indicate that the legislature in
its wisdom has not defined the word “licensee” in the PSCC
Act. The purpose is evidently to make it more wide so as to
cover gratuitous licensee as well with an object to avoid
multiplicity of proceedings in different courts causing
unnecessary delay, waste of money and time etc. The object is
to see that all suits and proceedings between a landlord and a
tenant or a licensor and a licensee for recovery of possession of
premises or for recovery of rent or licence fee irrespective of
the value of the subject-matter should go to and be disposed of
by Small Cause Court. The object behind bringing the licensor
and the licensee within the purview of Section 41(1) by the
1976 Amendment was to curb any mischief of unscrupulous
elements using dilatory tactics in prolonging the cases for
recovery of possession instituted by the landlord/licensor and to
defeat their right of approaching the court for quick relief and
to avoid multiplicity of litigation with an issue of jurisdiction
thereby lingering the disputes for years and years.
57. We are of the considered view that the High Court
has correctly noticed that the clubbing of the expression
“licensor and licensee” with “landlord and tenant” in Section
41(1) of the PSCC Act and clubbing of causes relating to
recovery of licence fee is only with a view to bring all suits
between the “landlord and tenant” and the “licensor and
licensee” under one umbrella to avoid unnecessary delay,

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expenses and hardship. The act of the legislature was to bring

all suits between “landlord and tenant” and “licensor and
licensee” whether under the Rent Act or under the PSCC Act
under one roof. We find it difficult to accept the proposition
that the legislature after having conferred exclusive jurisdiction
in one court in all the suits between licensee and licensor
should have carved out any exception to keep gratuitous
licensee alone outside its jurisdiction. The various
amendments made to Rent Act as well the Objects and Reasons
of the Maharashtra Act 19 of 1976 would clearly indicate that
the intention of the legislature was to avoid unnecessary delay,
expense and hardship to the suitor or else they have to move
from the one court to the other not only on the question of
jurisdiction but also getting reliefs.
59. We have elaborately discussed the various legal
principles and indicated that the expression ‘licensee’ in
Section 41(1) of the PSCC Act would take a gratuitous licensee
as well. The reason for such an interpretation has been
elaborately discussed in the earlier part of the judgment.
Looking from all angles in our view the expression ‘licensee’
used in the PSCC Act does not derive its meaning from the
expression ‘licensee’ as used in sub-section (4-A) of Section
5 of the Rent Act and that the expression “licensee” used
in Section 41(1) is a term of wider import intended to bring in a
gratuitous licensee as well.”

It is thus abundantly clear from the above that, a Suit for eviction of a

‘licensee’ so also, a ‘gratuitous licensee’ is maintainable under Section 41(1)

of the PSCC Act before the Court of Small Cause. In view thereof, the

contention of the learned counsel for the Petitioner in that behalf does not

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have any substance in it and cannot be accepted.

7 The moot question which arises for the consideration of this

Court is, as to whether the agreement dated 1 st December, 1975 herein, is an

agreement creating tenancy with respect to suit premises in favour of the

Petitioner or an agreement of Leave and Licence permitting the Petitioner to

conduct business in the Suit property.

8 It is the settled position of law that, while interpreting a

document, the real intention of parties to be deciphered, from complete

reading of document and the surrounding circumstances thereof.

Nomenclature of the document is hardly conclusive and much importance

cannot be attached to the nomenclature alone since it is the real intention

which requires to be gathered.

In view thereof, it is to be noted here that, a plain reading of the

said agreement dated 1st December, 1975 clearly indicates the intention of

parties herein in executing it and it is apparent that, by the said agreement a

‘licence’ was given by the Respondent to the Petitioner for conducting his

business therein. Therefore, the submission of Mr. Thorat that, this Court

may infer and interprete the said agreement dated 1st December, 1975 as an

agreement for ‘tenancy’ created in favour of the Petitioner cannot be

accepted and is accordingly rejected.

9 A minute perusal of record would clearly reveal that, the

Respondent in his pleadings in the L.E. Suit has made categorical averments

that, by a notice dated 17th August, 1976, he revoked and withdrew the Leave

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and Licence granted to the Petitioner to which the Petitioner sent a reply

dated 30th August, 1976 through his Advocate. It is further pleaded that, the

premises which is situated at Mumbai and the agreement for conducting

business on ‘Leave and Licence’ was executed at Mumbai and therefore, the

Trial Court had jurisdiction to entertain and try the said Suit. The

Respondent has accordingly led evidence in support of his case and has

made categorical statements in his examination-in-chief. He has stated that,

as the Defendant did not pay him arrears of compensation in respect of the

suit premises, in spite of receipt of notice, he revoked the ‘licence’ which

was granted by him to the Petitioner. It is important to note here that, the

categorical statement made by the Respondent in his substantive evidence

has not at all been shaken by the Petitioner in the cross-examination of the

Respondent. In fact, no cross-examination on the said positive and assertive

statement or admission given by the Respondent is conducted by the

Petitioner. The Respondent neither in his examination-in-chief nor in his

cross-examination has admitted that, the suit premises was given to the

Petitioner on rental basis. In fact the Respondent has stated that, it was

given for compensation as per the advice of Advocate. It is further to be

noted here that, the Petitioner in his examination-in-chief has admitted

execution of the said agreement (Exh.‘A’). It is important to note here that,

the Petitioner has failed to produce on record and prove any document or

receipt, even to remotely infer that, he was ever put in possession of suit

premises as a ‘tenant’. The Trial Court therefore, has committed a grave

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error in holding that, the Petitioner was a tenant of the Respondent.

10 The Trial Court has given undue importance to the licence

(Exh.‘3’) issued by the Competent Authority in favour of the Petitioner, for

conducting furniture business in the suit premises. It is to be noted here that,

the suit premises was given to the Petitioner for conducting business only

and therefore, having licence for conducting the said business in the name of

the Petitioner is not an unusual circumstance for recording a finding that, the

Petitioner was tenant in the suit premises.

The Respondent in his cross-examination has categorically

stated that, except the suit premises, he does not possess any other shed.

However, his father possessed another shed which was known as ‘Prakash

Garage’. His father was running a garage of taxi. There was also a Suit

pending in respect of that shed of his father. It appears from the record that,

the Trial Court has committed an error in not appreciating correct facts of the

present case pertaining to the said aspect and has erroneously gave

importance to the said statement.

11 As noted earlier, a plain reading of the agreement in question

would clearly indicate that, it is not a simplicitor agreement for conducting

business but, was a ‘licence’ given to the Petitioner by the Respondent to

conduct business in the suit premises. Even otherwise, after termination of

agreement by notice dated 17th August, 1976 by the Respondent, the status of

the Petitioner was merely as of a ‘gratuitous licensee’ and none else. The

ratio laid down by the Supreme Court in the case of Prabhudas Damodar

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Kotecha & Ors. (Supra), therefore, squarely applies to the present case and

the Suit filed by the Respondent under Section 41 of the PSCC Act is

maintainable before the Court of Small Causes.

12 Though the Petitioner has strenuously contended that, by virtue

of the said agreement dated 1st December, 1975, tenancy was created in his

favour, the agreement clearly indicates that, it was purely an agreement for

conducting business in the suit premises given to the Petitioner by way of

licence only and not for any other purpose. Not even a single word

i.e.‘tenant’ has been used or mentioned in the said agreement. There is no

mention of rent to be paid by the Petitioner to the Respondent in respect of

the suit premises. In view thereof, the Trial Court has erred in not properly

appreciating the evidence available on record.

13 Indubitably, the Petitioner has entered into the suit premises in

pursuance of the said agreement dated 1st December, 1975 and not otherwise.

As noted earlier, the Petitioner has failed to produce on record any document

even to remotely infer that he was ever put in possession of the suit premises

as a tenant. Therefore, the contention of the Petitioner that, he is a tenant in

respect of the suit premises cannot be accepted and is accordingly rejected.

The Appellate Court has rightly appreciated all the necessary

and relevant evidence available on record while reversing the findings

recorded by the Trial Court.

14 The Constitution Bench of the Supreme Court in the case of

Syed Yakoob Vs. K.S. Radhakrishnan & Ors., reported in AIR 1964 SC 477,

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while enumerating the nature and limits of the jurisdiction of the High Court

in issuing a writ of certiorari has held that, the jurisdiction of the High Court

to issue a writ of certiorari is a supervisory jurisdiction and the Court

exercising it is not entitled to act as an Appellate Court. This limitation

necessarily means that the findings of fact reached by the inferior court or

Tribunal as result of the appreciation of evidence cannot be reopened or

questioned in writ proceedings. That, an error of law which is apparent on

the face of the record can be corrected by a writ, but not an error of fact,

however grave it may appear to be.

In regard to a finding of fact recorded by the Tribunal, a writ of

certiorari can be issued if it is shown that in recording the said finding, the

Tribunal had erroneously refused to admit admissible and material evidence,

or had erroneously admitted inadmissible evidence which has influenced the

impugned finding. Similarly, if a finding of fact is based on no evidence,

that would be regarded as an error of law which can be corrected by a writ of

certiorari.

A finding of fact recorded by the Tribunal cannot, however, be

challenged in proceedings for a writ of certiorari on the ground that the

relevant and material evidence adduced before the Tribunal was insufficient

or inadequate to sustain the impugned finding.

15 The Supreme Court in the case of Shalini Shyam Shetty & Anr.

Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has enumerated

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the principles in the exercise of High Court's jurisdiction under Article 227

of the Constitution of India. It is held that, the High Courts cannot, at the

drop of a hat, in exercise of its power under Article 227 of the Constitution,

interfere with the Orders of tribunals or courts interior to it. Nor can it, in

exercise of this power, act as a court of appeal over the orders of the court or

tribunal subordinate to it. In cases, where an alternative statutory mode of

redressal has been provided, that would also operate as a restrain on the

exercise of this power by the High Court. That, the High Court can interfere

in exercise of its power of superintendence when there has been a patent

perversity in the orders of the tribunals and courts subordinate to it or where

there has been a gross and manifest failure of justice or the basic principles

of natural justice have been flouted.

It is further held that, in exercise of its power of

superintendence, the High Court cannot interfere to correct mere errors of

law or fact or just because another view than the one taken by the tribunals

or courts subordinate to it, is a possible view. In other words, the

jurisdiction has to be very sparingly exercised. That, the power of

interference under this Article is to be kept to the minimum to ensure that the

wheel of justice does not come to a halt and the fountain of justice remains

pure and unpolluted in order to maintain public confidence in the

functioning of the tribunals and courts subordinate to the High Court.

The afore-stated view expressed in the case of Shalini S. Shetty

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(Supra) has been further affirmed by the larger Bench of the Supreme Court

in the case of Radhey Shyam & Anr. Vs. Chhabi Nath and Ors. Reported in

(2015) 5 SCC 423.

16 After perusing the entire record, this Court is of the considered

view that, there is no perversity in the findings recorded by the Appellate

Court. The findings recorded by the Appellate Court are in conformity with

the evidence available on record and the established principles of law. The

Appellate Court has not committed any error either in law or on facts.

The Petitions being dehor of merits are accordingly dismissed.

17 The Petitioners are hereby directed to hand over vacant and

peaceful possession of the suit premises to the Respondent within a period of

three months from today, without seeking further extension in that behalf.

Digitally signed
by Sanjiv S.
Mashalkar
Sanjiv S. Date:
Mashalkar 2020.06.12
12:49:51
+0530
(A.S. GADKARI, J.)

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