Supreme Court of India
SMT. M.M. AMONKAR & OTHERSversusDR. S.A. JOHARI
- Citation
- 1984 INSC 41
- Decided
- 21 February 1984
- Disposal
- Appeal(s) allowed
- Bench
- V D TULZAPURKAR
Holding
The Supreme Court held that the High Court was not entitled to overturn the lower courts' concurrent factual findings and that the respondent was not a protected licensee because his occupation was not on a leave‑and‑licence basis but solely due to his attachment as an honorary surgeon.
Summary
Dr. S.A. Johari, an honorary surgeon attached to Dr. Amonkar Hospital, occupied a small cabin within the hospital premises and paid a monthly compensation. The Amonkar family, owners of the premises, gave notice terminating his attachment and sought his eviction. Johari filed a suit claiming he was a "protected licensee" under Section 15A of the Bombay Rent Act (as amended by the Maharashtra Act XVII of 1973) and obtained an injunction, while the appellants obtained an ejectment decree. The trial court and the Small Causes Court found that his occupation was not on a leave‑and‑licence basis but solely due to his honorary attachment, and therefore he was not entitled to protection under the Act; both courts dismissed his suit and upheld the ejectment. The Bombay High Court, invoking Article 227, reversed those findings, holding him a protected licensee. The Supreme Court allowed the appeals, held that the High Court was not justified in overturning the lower courts' concurrent factual findings, and restored the lower courts' decisions, confirming that Johari was not a protected licensee.
Issues considered
- Whether the High Court was justified in exercising its supervisory jurisdiction under Article 227 to interfere with the concurrent factual findings of the trial court and the Small Causes Court.
- Whether the respondent was a "protected licensee" under Section 15A of the Bombay Rent Act (as amended by the Maharashtra Act XVII of 1973).
- Whether the cabin occupied by the respondent qualified as "premises" within the meaning of Section 5(8)(b) of the Bombay Rent Act.
- Whether the cabin fell within the exclusionary definition of "licensee" under Section 5(4A) of the Bombay Rent Act.
- Whether the stamp‑paper document signed by the respondent accurately reflected the true nature of the arrangement between the parties.
Legislation cited
- Bombay Rent Act, 1947s. 15A, s. 5(4A), s. 5(8)(b)
- Code of Civil Procedures. Order XVIII Rule 17
- Constitution of Indias. Article 227
- Income Tax Act, 1961s. 138(1)(b)
- Maharashtra Act XVII of 1973
- Presidency Small Causes Courts Acts. 41
Subjects
protected licenseeBombay Rent ActArticle 227leave and licencehonorary surgeonevictionconcurrent findingsappellate jurisdiction
Judgment
.
'4·'
SMT. M.M. AMONKAfl &. OTHERS
. ·i
v.
B DR. S.A. JOHARI
. (~
Febraury 21, J91l'4
.
€
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[ V.'D. TULZAPURJ::AR AND SAnYASACHI MUKHARn; JJ. ]
,.
_, «'1-iQtitution of India, .1950, Article 221 Scope ·of-Justification of interference ·
with a uni:urrent finding of fact recoYifed by bOih the lower courts in- reSjJect of the
....
. ·""
1111tur6 of ~ccupation·ofpr~1nises by_ the lessee aµd in favour of the lessor by the High
€ourt-Jf'heth1r the less'' of the cabin a ''protected licensee. under th~ Bombay Rent
·A•! (N•. 57 •/1947) •s •mi"d<d hy the Maharashtra Act XVII o/1973. \ _ .
Th• Rospondent original plaintiff- a doctor by profession was .in occupation
of~ small cabin (adm~~suring appro':timately.115 sq ft) Whiph is a part of the_ Pl,"crµi-
eos of Dr. Amonkar hospital of which the appellilnts are tho propi:ictors. The Life
Insurance Corp6ration ·of India is the Owner of the building. The appellants ·furca-
toned the ResQondcnts to evict him after issuing a .Q.otice dated March 20, 1973
(/ iaforming tho Re~pondent that his a~tachment as Honorary Surgeon was Ilolnger .)·
required with effect from 1-4-1973 and that he should make hls own arrangements __
for his_ private consultation. The ResPondent filed a ·suit in the Sn1aU causes Court
of BOmbay ~ecidng a d~laration that h.e was a "protected lincensee,, (having becdme
·a deemed tenant) of the suit premises ·under section 15A of the Bombay Rent Act
(Acl 57of1947).as amentled by the· Maharashtra Act XVII of 1973 and for injunc-
' iion rastraining: the appellant-defendants from taking forcible possession. of the --~
suh premises and or disturbing or interfering Witli bis.use anci employment thereof
:OChenvise th3.n in due course of Jaw. ThC suit was resisted by the. appellant-dcfCn-
/
dants on threc•grounds: (a) that the cabin was never givell to the resporid~nt-defen..
danc QJ;l:leave·and licence basis, that' he wtis-~never in exctu.sive' use arid occupation
thereof but the user of the cabin was given to.. him because of his'· attachment as
Honorm_-y Surgeon to Dr. ·AIT!-onkar hospital tl~rough the good offices Or one Dr.
. Rawaiia and after obtaining a writing an ·stamp paper reflecting the true nature and
eharacter of the arrangement between.the appellants and the ReSpoildent p1ii.lntitf;
(b) that tbe ·cabin in q'uestion Was not "premiseS" within the meaning. of · SectiOn
5(8)(b) of th~ Rent,A~t. in as 'much ·as the sa"me could not'be said to have been given
· on. licence "separately" because the respondellt plairtiff was permitted the user .
; thereof only fQr 2-/2 hours in the evening on week days between S P.M. and 7.30
H' : PM. and for the rest of the time it was being used by the h0spital staff and that
one
1 of che i:t1Y'• of ~at ca.bin always remaincd'with the itaff of the hospita~ and henco
•
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M.M. AMONKAR V. S.A. JOHARI 647
disentitling to any protectio~ of the Rent Act, a·nd (c) that ihe cabin in question. rn;. A
ing admittedly'.' a room in the· hospitai•; feJI .. within the eXclusiOnary. part of the
dcfin_ition of the ..licensee" given SeCtiOn 5(4A)•and as such wa~ outside the prot~c:- : •.
.... ~ .. tion conferrer! on ·licensees bY section 15A of the Rent Act;
; ' '- I •, '
. , !he appella1its also fife~ an Ejection A_pf)Jication _<1 gainst th·e res_pondent plain-
tiff seeking his eviCtiori from the suit premises undCr secti'on 41. Qf the Presidency B
Small Caus~s Courts Act on the S;roulld .that the rcSPondent's right t9 occupy the
suit cabin had come t9 an cnd,alohg wit_h the termination of his'it'tachment as Hono-
rary SUrgeon to Dr. Amonkar· hospita'L The r~spondent plaintiff _resisted the said
suit. Both thC.suits_ were therefore heard-togethC_i: and coillmon evidence·recorded._
On an appreciation of the or.ii arid. documentary evjdence ·and 'the surrounding
circumstancei, the tr~al court cam~ to t~e cpn'Clusion·that ~the user Of the su~i Cabin~,
had been permitted to the· rCsponpent-plainti'ff not on leave' and licence basis
but because _of.his attachment as HonorarY "Sur&eon to Dr. Ainonkar Hospital a nd'
1 c
·that Ex. No . 1 'Which ~s ~igned by- him after ri:iny reaUsing its Jn1plications, ~as.
a genuine writing fcflecting the· true nature of the. arrangement' between th~· parties
and so as su~h the reSpondent plaintiff was not entitled to the protectiO.n of s~tion
- . l 5A· of "the R·Cnt Act and. triat Whh the tCrmitlation of his attachment as Honorary
Surg'eol'l to Dr. AinOnkar hospital his right to occupy_ the suit c·abit-caflie to an epd.
_,; .• The Trial iudgC decreed the suit.- In-ai>peal preferred by the respondent-plaintiff;
~he Appellate ·-Bench· of the sma.1rcallses Court On rCappraisal of the entire· material
oh record confifmed the: findings of the trial court both .on _the.· factual and on legal
issue4· and 'dismissed the fPPeal. The respon_.dent-Pl!lintiff' when .approached _the .,
High Court under Articla 227 of. the Constituti9'!! the High Court interferred with
... the concurrcrlt findin.gs_ of facf found by .the two "16wer courts and· reversed the deci-
1io.ns both on the factual issue and the two.le&al issues. HenCe the appeal aftef obtain...
in.i the s~iaf.Jea:vc)of the Court.. · ~ , · · '1 .• ' ,
E
•,
·Allowing the appeal:;,· the Cotirt
. ' . . .
~HELD: J. The H:iih Court was nOi rieh~ ifi reversing the concurreni finding
\ ~f fact r~orded by ~bo~. th~ courts bdoW oi~d eve~ on me;r~ts, the Hi~h Court. Jtidg-
.:ment cannot be sustained. (663 C]_ · "_ , ..
F
• I
.2.1. The Opinion of the.High· Court th"at there.were two di~turbing features',
revealed in the respectivC procecdinBs: and judjtlnents of the courts below which
were suggestive Of non-judicial aPproach,. $Omc bias and- partiality (in favour Of
the ap_Ddlant .defendants ~nd agains( the resPonderit__:.pl11intiff) on their· part which G ·.
""n~_ssitated a-full and unresfricted cX¢rCise .of its power of superinten.dencc by going
t~ ·the extent Or reapprcciating the cvidcn~e 1n depth. as if it were a 'first Appellate
~ourt _was nOt_correct. [65~ F~GJ ,. •
' . ., ' I ' ' ' . . •
-The com~~nts of the High .Court that th~ rejectio~ of an ap'plic<il!on to ~Ii
·one of the witn~Sts -viz._· Dr. Rawalia and. to direct him to produce hi_s Income Tax
.•
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648 . SUPREME COURT REPORTS (1984] 2" S.C.R .
•
A ,!e!_urns b~ the· trial court on 18-10~1976 was a disturbing feature suggestive· of
• non-judicial approach, son1c bias or so1nc partia~ity ·sho,vn by tbe Trial .Judge,
would have had : been _si1nply dismissed. \Vithcut .giving• any reason ·.bu( the
learned ;.._trial Judt.e. passed a lengthy ~rder giving three. Teisons for the
rcjr.ction of th~ application: (a) ihat vague averinent_s .L were made in the
· application aboµt the r.eceipt of theJ infarllliltion regarding Income Tax ·.Returns
of :Dr. Rawalia on 8th qctObei, ·1976 ~ithout the occasion -for receiving the infor-
B mation or thC source of information being indicate9. and thit when the ·court made
a Querry in that behalf bis cou.nsel Was not willing to give particulars or disctoSe·
the s·ource of information and .it was, therefore, difficult to believe that the rcspon·
detit-plaintiff came in possession of the said ·information after the cross-cxamiw
nation of.the witness was· over and after the closure of a.Ppellant-defendant5' .ease;
(b) that under section'!38(1),(b) of the. Income Tax Act, 196.1 the respondent-plain-
tiff could have and should have obtainc:dithe ilecessary information or n1aterial from
c the Commissioner of Income-tax by making an application in the prescribed form
and.sin~e he.had not done so it wollld not be proper to helP him to get the infor·
mation through thd court; in other words, if be had attcn1pted and failed to get
the information by following the prescribed proCedure the court ·co~ld have helped:
hirrli{and (c) thil.t the Court's power to recall and examine any witness at any sta£;e
of the suit under _Order-XVIII Rule 17 of CPC on which strong relia1ice was placed
by counsel for the respondent-plaintiff Was to be exercised in exceptional circum·
D stances and. no exceptional circumstance had been mado out by the respondent-
plaintiff inasmuch as th"ese documents would have bycome a vailablc to him before
he started..the witnCss's: cross-ex.amination. May be iri the exercise its discretion
another Court n1ight have;taken"a different_ view and allowed lhe application.
But -unless -the reasolls give11 by the learned trial· Judge could be se.id to be
moon-shine, flimsy or irrational the rCjcction of the applicatiOn cannot be dubbed
as suggestive of no~-judicial approach or biaS Or partiality on his part. -It is
also pos!.ible that the reasons for giving a_ ruling ona point'. or for rejecting an
E apJ)lication n1ay be wrong· of diSclose a non~judicous exerci~e of discretion and .
open tO correction in appeal, but non motive of non-judicial apprpach ~r bia~ or
partiality could be attributed unless the reasoi:i given are moon-sbire or so fl]msy
or irratio.nal that there arc unreal: Considere'.d dispassionately, such a thing:could
~1ever be said about thC reasons given by the trial Judge for rejectin,g the application.
In any' case, the rejection Of thC application could nbt be regarded as having stemmed :
F .
from any. oblique motive ·or purpose. [656B·H, 657 A-C] ·
Further. the so called' disturbing feature noted by the High Court jn the Judg-
ment of the ·First Ai:>pellato Court is so innocuous and inconsequential that it c6uld
hardly afford al)Y ju~tification to re~appfeciat"e the whole evidence as ·done by it.
On the contrary. the broad~features eJUGrging from the evidence on record clearlY
support the appellant-defendants' case that the user of th"e suit cabin wa_s allowed
G to the respondent-plaintiff not on leave and licence basis but bect1:use of his attach..
ment ~s-Honorary surgecin to Dr. Amonkar hospital. [663 B~C]
,
CIVIL APPELLATE JURISDICTI'JN: Civil Appeals Nos. 104:105of198r
a· Appeals by Special leave from the Judgment and Order dated
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' M.M. AMONKAR v.' s.A. JOHAR! (Tulzapurkar, J;) '649
~ ' . . .
'; the 18th August, 1980 of the Bombay High Court in Writ Petition A.
Nos.
. , of 1979.
30 aud 115 .' \,
' . '
V. M. Tarkunde, P.H. Parekh, Mrs. Manik Karanjei~al and
Miss.Ind11 ,Malh~tra for the Appellants·.· .
.. B
"\ J .
A.nil n(ivan, Dalveer. · B!tant/ari and · R.:f.· Yatfav for the
Respondent.
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The Judgment of the Court was. delivered by
c
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I
TuLzAPURKAR, J. These appeals by special leave rai•e · tll'o
questions for oilr determination: (I) Whether the High Court in exer-·
oise .of its powers of superintendence 'under Art. 227 was justified in D
. interfering· with a. concurrent finding of fact. recorded. by, both the
.lower Courts .in favour of the appellants?_ and (2) Whether the respon-
_dent was a protected licensee in respect of the'suit pre111ises under· the
Bombay Rent Act (Nd. 57 of 1947) as amended by the Maharashtra
Act XVII of 1973?
E
i_ . This unfor.tunate litigation between· eminent medical. practic ••.
-lloners of Bombay has been hotly.contested before ).IS since it relates' ·
.· · to professional accollll11odation of which. there is great dearth in that
city: The accommodation in question consists or a small cabin admea-
x
surillg 15'-6" 1-1'-2" (approximately 175 sq. ft.) which'is a- part of • F·
the. premises of Dr. Amonlcar Hospital located on the fourth floor of - \
Boip.bay Mutual Terrace at 534, Sandhurst Bridge, Bombay, of whieh . ·
one Dr. M. D. Amonkar; since decea-sed, was the propri.etor (whose
heirs and legal representatives are the appellant-defendauts before us,
befog his widow and two soils 1and three daughters-of whom one.
G
son and two' .
daughters are. medicos). .
.
Dr: J'ohari (the respondent-plaiatiff) an M.B.B.S. of Bombay,
'
- F.R.C.S. of London and Edinburough and' Hoi10urary '
Surgeon atta- H,
ched to G.t. Hospitai- and Bombay· Hospital, .filea a suit (R.A. ·Suit ,
.... ' , - . '
..
• '111111 ' • ' •• • :
•
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.. 650 . SUPREME COURT REPORTS. . (1984] 2 S.C.R;
A No. 779/2893 of 1973) ;n the Sn1al!' Causes. Court at Bombay s~~king ·
a declaration that he was a "protected' licensee'· (having become
a· deemed ·tenant)• of the .suit premises @der s. · 15A of the.
Bombay Rent Act (No. 57 of 1947). as amended by the Maharashtra
Aet xvn·of 1973 and for injunction restraining the appel\ant-defen· ..
dants from taking forcible poSS\'SSion of the suit premises and or
B disturbing or interfering with his"usc and enjoyhient thereof otherwise
than in due course of lalv. Bis case was that he came to ·
occupy exclusively the suit premises (being the cabiil admeasuring
about '175 sq. ft. with . the 'facility of using the adjacent common I J..-
waiting rooJll. together with the facility of water and electricity)
on ISt May, 1970 on leave and licence bas!s under an· oral
€ agreement ~ith late Dr.· All).onkat o~ payment of monthly com-
.P~nsation ·of Rs .. 201 for doing his private consultation surgi-
cal· practice. ·ms further case was that though within a ·few days· of
his occupation laie Dr. Amonkar had obtained from him a_ writing
· ' purporting to state that he was attached as an Honburary Surgeon ·
• .to Dr; Amonkar Hospital. and was, therefore, allowed· to have his
D private cohsultation practice in the premises, that he had agreed to
.bear and pay rateably the expenses.of telephone, us!:' of fw·niture, etc.
and· that he was neither a tenant nor a licensee, the said writing had' .
been obtained from Iiimmerely as a 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 a~te,d
upon. According to him, he had cordial relations with· late Dr. Amon-
r'
E
kar and that even after his death which occurred towards the end of
'·. ,.· 1971 he was regularly paying Rs. 201/- per month to his heirs till Jan- · _),,
uary 1973 but since threats of forcible di'spossession were held out to
him by the appeliant-defendants, particularly l5y, appeallant-cl.cfendant
'No. 3 Dr. Suman Gaitondey (the married. daughter of' the deceased)
F on her return to Bomb'ay from Calcutta, and since by. a notice dated
.20th-March, I ~73 he was .informed ,.that his attachment as honourary
·Surgeon was no longer required with effect from 1-4-1973 and tha.t
.•
he should make hiS own arrangements for his pfivate consultation, he.
was forced to file the suit seeking reliefs of a declaration: and injunction
mentioned above. .. · ·
G
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.· The suit' was resisted by . the appellant~efend,ants · on three
grounds: (a) that the cabin was never given to' the ·respondent-plain·
H tiff on leave and licence basis as alleged by him; that he was never in
exclusiv~ use and occ~patio~ therC<;if<but the user'o/the c:;bin was given
•
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- M.M. A:MON_KAR l'. S.A . .JOHAR! (Tu.fzapurkar, J.) 651 .·
' ' . .
to him because of his attachment . as .' Fionoui·ary .Surgeon to Dr. A
A,monkar Hospital, through the·good offices of one Dr. Rawalia'; that
• • I .." - ' '
the writing on the stamp paper of Rs. J.50 bearing date 4th May, 1970
signed bJ' the respondent...!..plaihtiff reflected· the true ·nature and .
character of the .arrangement.between the parties,;, it was emphatically·
denied that the sai~. 1 writing was obtained .by late br. Amo11kar, for
the purpose ~r moti~~ suggested by the respondent-plaintiff or· was B.
not intended to be acted upon, (b) that the cabi.nfo question was not
"ptcmises" withi.n'the meaning of s. 5 (8) (b) of .the Act, inasmuch as
the same> .could n-c.t be sa'd to have been given on J.icence. 'separately'
..,~, because the respondent~plaintiff was permitted the user''thereof only'
for '.r-1/2 hrs. in.the evening on week days het~e.en 5.00 p.'m. to 7.30'
p.m.an~. for the .rest of the time .it was being used by the hospital · c
staff.and that·on~ of the· keys qf that cabin alyiays remained wi.th the ,
staff of• the hospital and hence .the· plaintiff was not entitlrd to cny .
-..,;... . · . _protection of the .Rent Act;. and· (c). that the cabin in question.·being
admittedly 'a room in the hospital' fell within \he 'e'xclusionary pert
of the definition of the licensee' given in s. 5 (4A) and as such was
outside the protection 'cm1ferred bn licensees by s. J5A of 'i'he Atl. ·
j ' ' ,, ____
Jj
,
·Jt may te stated th'at.while the aforesai<1. suii'was per.ct.iiig. the.
,appellant~dcf<11<1.ants on their 'part filed an .eviction petition being '
.1 . EjectmentApplicaticn No. 259/E of 1976 against the plaintiff-respon-
~ d•nt· seeki1\g· his eviction from the• suit pre111ises uncl.er s .. 41 ·of ,the
• '"· Presidency Small Causes Courts Act on the.ground that.the plaintiff's
~> right. to eccupy the suit cal:!in had come to an .end alongwitli the ter-
mination of ~is ·attachment as Honourary Surgeon to Dr. Amonkar
Hospital and ·the· plaintiff resisted the said' evicticn en.the ground that
he was a, protected Jicensee under the Bombay Rent Act as ani.end.ed F
by the Maharashtra Act XVII of 19(3 and was,' thereforto, not liable
. ' to be evi~tcd therefrom. The two proceedings were '.heard together
and common evidence ·wiis recorded in the &c!aratory suit .being R.A:.
"" ~ - . ''
N0. 779/2893 of .1973. . " · . . . .. .
t • • • •
It is clea.r that on .the 'be.sis of the rival pleadings of tl;e two .par-
ties in.the two pr?ceedings before the Small·Causes Court princip:illy
three isSl\es aros,e for .qetermination, namely, (1) v.:hat was the true
I
. nature ofthearrange,ment.between the part;i~s regarding the user of the
suit cabiti by t11e plaintiff, whether the plaintiff's ·user oftbe cabin was on
.H
Jeave and Jicente. l]asis on payment of mon.thly _compensatio~ or it
!
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652
,, A
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·SUPREME COURT REPORTS [1984] 2 S.C.R.
•
was on account of his attachment as Hon~urary Surgeon to Dr.
• Amonkar Hospital? In other .words, w~ether•the writing on the .stamp
paper signed by. the plaintiff (E.xt. N;o. 1)' was a, genuine do~ument
reflecting the true nature of the arrangement between the parties?
(2) whether the .suit cabin was not 'premises' within the meaning.of
s. 5 (S)(b) of the Act? and (3) )Vhether the suit cabin was 'a room in
,. B in the hopital' falling within rl)e exclusionery part of the definition of
'licensee' under 5 (4A) and, therefore; outside the protectionc ontem-
plated by s. ISA of the Act? It is obvious thatthe first issue raised
purely a question ill fact, the determi;iation whereof depended on
appreciation of the evidence led by the parties before the Court while
. the other two is~ues raised questions of Jaw:~rather mixed questions
c of "law and fact. . ' .
• · · . · ~
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At the trial parties Jed oral frs well as documentary evidence
on all the is$ues arising in the case. TM evidence on the side or th~.
D
fespondent-plaintiff consisted only of his oral testimony, during the
course of•which he asserted that the user of the ~abin had been given
to him by late Dr. Amonkar 'On leave and licence basis on payment
of monthly colnpensation. On the side of the appellant-defendants
,the o)'.al testimony consisted of depositions of two witnesses (i) Dr.
E D.M. Amonkar (defendant No. 2) and (ii),,Dr. Rawalia and the.do.c\J.-
mentary :evidence consisted of two writings obtained by late Dr. _ ) .
Amonkar-'--one from the respondent-plaintiff and the· either from
Dr. Rawalia. Ext. No." I is a writing 'on a stamp paper of Rs. 1.50.
bearing date 4-5, 1970 obtained. from the respondenf-plaintiff recor-·
ding the arrangement with him, and Ext. No. 2 is a. writing on a. stamp
F paper dt. 23'4-1962 .signed by Dr. Rawalia recording the arrangement
with him .'Both Bxts. No., I and'No. 2 are identical in terms and
appears that Jong before respondent-plaintiff was allowc'c'. the use .
of the suit cabin, Dr. Rawalia had been allowed the use of another
cabin in the hospi!al pr~mises by late Dr. Amoi1kar on the sa1ne terll).s.
Each writing signed· by.the occupant in terms .states: ''I am an Hen.
G Surgeon to Dr. Amonkar Hospital•. I am· allowed to practice may.
private ·consultation in the premises. I am neither licensee ·nor sub-
tenant. I have to bear rateably the expenses incurred tcwan\s tele-
ph.one,. electricity, use of furniture and instruments". Dr. Rawalia,
through ..)¥hose good offioes the respondent--:-_plaintiff got the suit~·
H •cabin from late Dr. Amonkai; 'fully supported the appellant-defen-
dants' case that late Dr. Amonkar had permitted the respondent-plain- ·
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.M.M. AMO~AR v. S.A. JOHAR! (fohap;irkar, J.). 653
tiff to make use of the suit cabin because-of his attach'ment as Hano- A
.~. rary Surgeon to/Dr. _Amonkar l;Iospjtal•. On an ~ppieciation of the.
ofal and documentary evidence and the surrounding circm{1stances, ..
the trial Cou~t came. tq_ th,e ·~onclusion that the user of the suit cabin' I
. had been ipermittcd 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 liim B
, after fullv .realising its .implications/ was a gem1ine writing reflecting
_the true ~ature of the . arrangement between the parties and· as. such
<~ the·plaintiff was not.entilted to the protec!ion of s. 15A of the Rent !.. I .
· 'Act and with the termination of his attachment as Hortourary ·Surgeon
to Dr. Amonkir Hospital his right to coccup~ the' suit~ cabin came to
. end, The trial Court also decided the legal issues in appellant~defen- . c
-, . dants' favour with the result that the respo_ndent-plaintiff's detlara-
. tory. suit was dismissed and. the ejectment application of the ·appel-
· ·rant-defendants \vas decreed.·In appeal preferred by the respondent-
. plaiii.tiff the Appeliate Bench of tJ;te Small Causes Court on a re-ap-
praisal of the entire 'material.. on record confirmed the findings of. the
triaJ.~ourt on the factual i~sue as also' on the. legal issues. The appeal
was dismissed ·and the ejectment decree passed by· the Trial Court in
favour ~f the appellant-defendants was confirmd.' ' ·
'\
'"" .e ·'
\.
. . ·~ai11St the dismissal of his declaratory suit ~nd the ejectmen!
· ( decree passed in E.A. N8. 2?9 /F of 1976. the respondent-plaintiff .E
·- --- approacheti. the High Co~rt undei· Art. 227 of the Constitution by
preferring two procee<J.ings ~Special Civil Application No. 30 o/,1979
a_nd Writ Petition No. 115 of .1979 bo_th of ~hich 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 i1] the respective proceedings/judgrcent's of the F
. Courts below which were suggestive of non-judicial apprnach, some
bias and partiality (in favour of the appellant....:..defendants and again.st
. the respondent__:plaintiff) on their part which necessitated a full and
linteS.tricted exercise of its pow.er. bf superintendence by going to the
extent of re-appreciating the evidence in depth.as if it were a first'Appel-
. late Court; anq. after briefly.indicating what it felt were the two distur- G.
~ bing features, the High Caur_t re-appreciated the entire evidence fully
. and in depth and came to the conclusioJf that the user of the suit
cabin was given to the responden!-'-plaintiff on ieave and ·licence basis
and the. writing _Ext' No." I did not' rep~esent the real state of affairs' . '
as far as the. re.pondent-plaintiff's fight· to use the .. suit cabin was H
concerned and that the sanie had been iaicen by late Dr. Amonkar only·
••
'--. __
• (
•
654 SUPREME COURT REPORTS·. [1984] 2 S. C.R:
A for his' protection against his own. landlord, namely, Life Jnspraiice
Corporation. The High Court· also ·negativ.ed the findings recorded
by the Courts below.on the two lega).tssues"and held that the suit cab.in
was "premises" within the meaning of s.. 5 (8) (b) of the Bombay Rent
Act, the same having bee~· given on licence 'separately' to the respon-
dent~plaintiff and that the suit cabin was not 'a room in the hospital'
B and· as such the respondent-plaintiff could be and· was ·a 'protected
Jicen~ee' entitled to. Claim protection under s. 15A: of the Act. ··The ' ;,,:.
High Court's illterferenee with the concurrent finding of fact recorded
by 'the two Courts below .on the factual issue as also its conclusions
~n the two legal issues are assailed bef~re ·~s in the instant appeals.·
.
The first contentfon urged by counsei' for· the appellant-defend:
ants is that the question whether the ~ser of the suit ·qabin had been
'
-
allowed to the, respondent,-plaintiff on· leave and Ji~ence.o!Jasis or
because of his attachment as Honou.rary: Surgeon to Dr. Amonkar ·
Hospital and'whethor the writing fat.· No. J was a genuine document •
and reflected the tnie nature of the artangement .between the partjes
- or not was purely a question ~f fact depending upon the evidence Jed
by the parties and it was on an appreciation of ,the·oral and cl.ocumen-
tary evidence· ancl. the surrounding circ~mstances that both the lower
Courts, had come to 'the conclus,ion that. the' respondent~plaintif('s
occupation of the, suit cabin: was not on leave and licence basis but
E ·, onaccountofhisa\tachmentasanHoiiourary Surgeon to' Dr.Amonkar
Hospital and that the writing E~t. No. I was not any camouflage or
· facade obtained by late Dr. Amonkar ·for the purpose suggested by
the respondent---'p)aintiff b.ut was' a genuine document which nfii'ctcd
·the real arrangement betwee11 the parties and, such a. concurrrn.t fir.ding
of fact, unless it was perverse, which it was not because there wqs
F ample evidence 011 record to support it, could not be int~rfer<d with by
the flig)!_Court under Art: 227 .. CouriS~l further urged that the justifi-
cation given by the High Court for inierfering with such ccncurrcnt
finding uf fact was unsustainable inasmuch as the so·califd two distur-
bing features wer~ not really auy distrubing features much less .were
theY suggestive of any !'lon:judicial approac)1 or some 'bias or partiality
on the part of the lower Courts in favour of. the ·appellant-cl.cfenc.ants
and /against tl\e respondent.....plai!'tiff. Counsel' strongly urged that ·
'' , the suggesti.on of non-judicial approach or of bias 9r ·of partiality on
· the part of the .learned single Judge and the two learned Judges of the
Appellate Bench of the Couhrt ofbSemeal\ CdaeuseBvswe·nas nunmwea~;:~~:d·H~:~
·H ·
• called for and ought not to ave n ma . 0 , ~.
r·
'';
...
I:
' . , . . . . I
M.M. AM~NKAR v. .S.A. IOHARl (Tulzapurkar, J.) . 6SS
Court's view. on the factual issue. was wrong. It wa·s.also ,contended. A
that evid,nce·clearly showed that the suit c,abin.had not been 'separately'
given to the respondent-plaintiff: and in 'any case it was 'a rocm fo
the hospital' and as s.uch' the respondent-plaintiir'was not ,entitled
· to claim any protection of the Bombay Rent Act. Of\ the, other hand,
cou;,sel for the respondent-plaintiff supported the ..High Court'g
findings on all ·the issues and urged that there was no 'reason to ·disturb· B
the judgment !ll)der appeal. ·
-
. -.J
~.
• . . ~
. This necessitates a.close scrutiny of the two disturbing featutes~
;~ one pertaining to the·proceeding bef0re the, trial .. Court and the other
pertaining to the judgment of the Appellate Bench-which according c
io the High Court ma(\,e it to undertak.e a re-appredati<Jn of the entire .
evidence in depth 1as if it were a first appellate Court. lU-theirial Court
after examining their two witnesses (he appellan(-defendants clc.sed
.~-- their case on 18th September, 1976 and the case was fi"ed for ari;u,.
ments 'an 4th of October, 1976,' o;, which day, however, argumen\s
could npt be heard and the matter was adjdun1ed. Ii appears that On. D
18th September, 1976 during the .course of his cross-examination it
was .suggested to"'Dr. Rawalia that in his Income-Tax Returns he ha~.·
been showing payment of Rs. 223 per month to Dr. Amonkar as.rent;.
he denied· the suggestion and asserted that he had been only showing
'~ · . the amount as paid to Dr. Amonkar. ·In other words, ·he had merely
. shown the payment as expenditure· without indicating its character.
/ On !2th of October, 1976 the resllondent-plairitiff ma~e an appljcation
.A-statmg that on 8th October, 19"6, he had come to know that Dr.
. · Rawaiia had filed his Income Tax Returns showing that he ,had ·paid
· Rs.1870lis rent for 1972-73, Rs.2250·as rent for 1973-74 and
Rs .. 2275_,,<is rent for 1974-75 and had daimed deductions of the sai~.
amounts as expenses and, therefore, (a) Dr. Rawalia. be nr~ Jkc'.Jcr
further cross_,,xamination anU (b) tha1 his Jnccme Tax R~turns for
' ...
the ·said thiee years be got produced through a witness summo~s or .
le,tter ·of request being issued t~ the Co.minissioner ·of Income Tax,
Bomay. Obviousiy, the application was made with a view to confront
Dr. Rawalia by.his own Income Ta7Returns which he had fi~~d for
provmg (1) that Dr. Rawaha had made a false statement and (11) that ·•
payments made by him to the apptllmit-defenc!:lnts bore the charac- · ·
ter of rent. It cannot be disputed that the aspects sought to be proved
by recalling Dr. RawaHa and by ge~ting liis,.Jncome Tax Returns prcf.u-
ed ·were relevant to the issue involved in the case, though· it is well'_
settled that a particular nomenclature .given fo paymentiymade .by a H
paliY is not conclusive or decisive of the wetter. 'fhe applicaticn :at£·
,.._'_
f·
j
SUPRBME COURT Rl!PORTS. [1984) 2 S.C.R.
A dismissed. by the learned trial Judge· on 18th of October, J 976 and
according to the High Court this rejection o! the application was a
disturbing feature. suggestive of a non'::judicia.J approach, some bias
'.or some partiality in favour of the appellaµt-d~fend.ants on the part'
In
of the learned trial .lud.ge.. our vi.ew the comments of the !Iigh Court
. in the matter of rejection of this applicati01{ would have had ;ome
B . r force if the, application had been 6mply dismissed w.ithout giving any
reasons but the learned trial Judge passed a lengthy order giving three
reasons for the rejection of the application: (a) that vague averments . I
'nvere made in the application about the -receipt of the information". '{:.
regarding Income Tax Returns of.Dr. Rawalia on 8th·October, ·1976 ..
without the 09casion for receiving the information or. the. sonrce of..._,,_
C information, being indicated and that' when the Cm1rt made a qu'erry .
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-plaintfff came, i~ PC!ssession of the. said inf9rmation
. after the cross-exarllination of ,witness \Va'S over arid afte; th_c closure
.of appellant-defe'ndants; case; (b) that under s. 1°38 (I) (bi of the
D Income Tax Act, 1961 the respondent-plaintiff could have and should
have obtained the necessary information or material froin the Co~;
missioner( of I~come Tax by making an application in the. prescribed c
form and, since he had not done so 1t would not be pi:oper to help him
"' . t-0 get the information through the Court; in other words, if he had
.attempted and failed to get the information by followillg 'the prescri-
E bed procedure the Court could have 11elped him; and (c) that the
Co1,1rt's power to recall, and exainin~ any witness at any stage of the \ ·
suit under Ozrder XVIII, Rule 17 of C.P.C., on which strong reliance-_..; A-,
was placed by Counsel for the respondent-plaintiff was· to be exe~cised _ .
in exceptional circumstances and no exceptional circumstance had
been made out ·by the ·respondent_:_,plaintiff inasmuch as these .docu-
F · . ments would .have become available to him before he started the wit-
ness'~ cross-examination. May be in the exercise of iis di~cretion . f
anot.her Court might have taken a different view and allowed the ap-
plication. But unless the reasons given by the learned trial Judge could
be said to ·be nioon-&hine, flimsy or irrational the rejectiJn of the
application cannot be dubbed as suggestive of non-jµdicial approach
e. o~ bia.s or partiality on his part. It is also possible that the reasons
- . for givlng a ruliii.g on a point or'for rejecting an'applic;:ttion may be
wrong or disclose a non-judicious exrcise of discretion and open _to
oorrection in appeal, but no motive of a,non-judicial app!oach or bias
or partiality could be attribuied unless, as we have said above, the
H reafons given ·are moon ..shine or so· flimsy or irrational that they are
• 'llarcal. Cousidered ·dispassionately, such a tlling · can never: be said
•
'
. -. '
"
·• M~M. 'AMO!oUU.R v... S.A. JOHAR! .(Tu/zapurkar,l.) ' .657
\ - : . .~ .- .. . f~;·. '."'-'. . . .. ,
about th<i"reasous given by the trial Judge for rejecting the application. · A-
It is true that the appellafe Court has not dealt with this point though
iu ground No. 27 of the Memp. of Appeal a point had been.taken that
1 the application .had beeu '.wrongly rejected but in all ,probability it .
was not argued by counsel otheru,ise the appellate. Court would have
· dealt wi.th it. In the High Court no asscrti.on was made that the point
was · actually argued or pressed before tjle Appellate Bench but it was ,· B
meidy urged that althbugh a complaint against the rejection ~f the·
~ .~. ,,, appllcation·had been made in Ground .No. 27 of the Memo.of Appeal
· f, the' anpellate Court has tj°ot dealt with.it. This al~o .shbws th~t the·.
~ejection was not' regi;rded by the respondent-plaintiff or hjs counsel .
·,~ before the appellate Court as any serious or disturbing feature. In any· .. -._
case, as stated earlier, the rejection of the appliciition could not be C
regarded as h~ving stemmed from anx_ oblique motjve or. purpose.
This so~alled .disturbing feature., therefore, did not afford any justi-
fication to the;I{igh Court to undertake a .re-appreciation. of the .entire
~- evidence in depth for reversing a concurrent .finding of fact .recorded
by the. two Courts below. · ·
~· ...
Turning 'to the judgment of the' Appellate Court, the so-calkd
disturbing feature 'noted by the High Court, is, in our view, so. inno-
cqous and inconsequential that it cO'uld hardly afford' any justification
~.... to re~appreciate the whole evidence as· clone by it. It appears that during
the. hearing of the appeal after .supporting the trial Court's finding on E
'· . {t~ factual issuy as .also .th<o'firidings on' the legal issuj)s and' pressing ·\
· to their acceptance, counsel for .the ,appellant"rllefendants put for-
-. . ' ward an alternative l~stsubmissicin that even proceeC!ing. on the assump-
tfon that allc ora1 lice~ce h.a4. been created in. respondent--'plaintiff.'s
favour by-late ill. Amonkar, as alleged by him, ·the material on record .
. '"\ ·showed that the'sai~ Jicen.cedid not subsist on the rel~vant date,.namely, . F
1-2-1973, mentioned in' s.. 15A ·and, therefore,, he was not entitled to .
an~ protection under the Act, and in -that behftlf an averment made by .
. the respo,ndent-plaintiff in paragraph 4 of his Complaint dated·.
• f li4-3"1.973 addressed 'tothe Inspector ofJ>oli~e, Gamdeyi.Police Statlcm
was relied, which avermen!' runS'thus: ·"Ever since ihere has been a · ,
· publicity in the newspaper. that the Govt. of Maharashtra is aboJ;..
shing ~he leave and licence system (meaning thereby that the Govern-·
,,;... ment is t!tinking ofconve~ting occupa.pisunder leave and licence basil
into 'deemed tenants') ·Dr.· (Miss)· Usha .Amonkar and Dr. D.f>.C.
· Amonkarare asking him to vacate the premises",' and the. contention
was that .since the Bill· amending the Bombay Rent Act (snbsequentlf .H
'_. .'
numbered as Act XVII of 1973) had. been introduced or publiihet'I itl. .
. .
. \\
,.
\
. . . -...· ·.
I ., '~ •
' ' .
'
'
·.)
·~
658 ' . ' S\iPRBMfl COURT REPORTS . [1984] 2 $.C.R.
~~
:::~.,:±~ . ·(
August, 1972 the respondent-plaintiff's licence, on his own aforesaid .'""-·'
averment, was"not subsisting and had come to an end long before.
1-2-1973. The. appellate Court accepted this argument on the footing
that the Bill had been intrddnced (not in the Assembly) in 'newspapers
for, information to the public in August 1972 and held that the· respon-
Mnt-plaintiff's .licence, iftany. was not subsisti11g 011 Isl of febn\ary,
I. 973 am! he w.as riot enti.tied to protection ev. en if his.·~ase were assumed
cL. to be true. ·'According to the High Court such a conclusion drawn b)•
.
\ the appellate Bench w~s an impossible one having regard to the plead-· >---
ings and the cyidence on record, foi-, according to•the High Court,
~'·
·c
.
l it was by notice dated 20th March; 1973, issued by the.widow of I~
Dr. Amonkar that the respondent-plaintiff was.categoric~lly told that '
he should make altefnativc arrang~ment for his consultation practice
• elsewhere with effect from 1-4-.1973 which showed that his licen£e
was tenninated·with effect from date. It must however be bcrne
in mind that· whi1t was termi~atcd h'' the notice dated 20th.
, March, 1973 was the respondeJ1t_,:plaintiff's attachment as an Honow ..,
rary Surgeon to Dr. Amon kar Hospital and. not his licem:e. ln fact,
it was never the case of the appellant--defendants that the respondent-
plaintiff was a. licensee and. _therefofc,_ neither their pleac\ing nor their
notice could be used for showing that the. respondent-pl,,intiff's
licence. continued upto Jst ~f April, 1973. The appellat-e Court while
accepting the alternatiye s~bmission was proceeding on the- assumption ··~-~ .
that the resopondent-plaintiff's occupation was as a licensee and on
'. that basis it considered what would be the effe~t of the avermrnt made
• by him in para A of his complaint which suggested that his oral lice".~~}..
had been terminated by being 'asked to vacate the cabin long before
1-2-1973. Now in the first place assuming. that the appellate Court's
conclusion in that behalf was not justified on the evidence on recorc,
the same! contd· at the highest be regarded as a '~rong conclusion but
F ·it is impossible to say that it was suggestive of a non-juc\icial apprcach y·
or bias or partiality on its par!.. Secondly, it amounted to acceptance
of the alternative contention on an assumed basi.s after the appellate
Court had already, on a re-appraisal of the entire material ·in' the case,
recorded its· finding on the factual issue in agree~ent· with the trial
Court in favour of the appellant-defendants: In other words, the-
c conclusion. qn the_alternatiVc subrn~ssi~n ·,vas not 1nere1y i.nnocuous i.e. ·
unmotivated by any oblique purpose but inconsequential to the dispcc
to
-lsal of the case. Ha'{ing regard 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 <iutght !'ot to ha.ve interferred .
R 'with the concurrent finding of fact recorded by t]·,e two Courts below
· on tb.e factu.al iss~e arising in the case. •
'
M.M. AMONKAR _v. ~.A. JOHAR! (Tulzapurkar, '.!.) . 659
Though _the aforesaid conclusion of ours would be sufficient to A
' ·dispose of the appeals, even on-merits we feel that the broad f~aturc• ·
, emerging from the, evidence ori reeord make it d.ifficult to accept t.he:
: respondent-plaintiff's case that .the user of the 'suit cabin was penriit-
ted to him on leave and licence basis as claimed by him. Admittedly,
Dr. Amonkar H'ospital was never exclusi~eiy a Maternity and Gynaeo-
cological Hospilal and had a 'Nursing Home Department where general B
e>perations were undertaken and as such.attachment of couple of doctors
as Honourary S.urgeons to it would he most natural and. since r.t the
,..,./
: materi<il time. both the _senior Dr. Amonkar_ (since deceased) an<\, the
.. junior Dr. Am?nk~r (defendant N~. 2) were on account of their ill-
·~Jiealth, unable lo work with full vigour, with only <1.octors (Dr. Mi•s
' . Usha Am 0nkar and.pr.. Rawalia) in attendance the resp<'m.dent--'-plain- .C
'tiff's attachment as H~lriourary Surgeon to it for temporary dt\ration
till Dr, IMrs.) Gaiton.de r~urned from Calcutta, couldnct be said to
be un~ecessary ~s opinefi by 'the High ·court but wis.more probable ..
Even. the High Court· has observecfthat late Dr .. Amonkar had obliged
the~ respondent-,,p)aintiff by accommodating him in the suit cabin·
' tempi>rarily when he was suddenly made. to fowe his premises o.n the
third floor. of the very building and that the respondent-plainti,ff had
D
iaken- advantage of the gesture shown to him by late Dr. Amonkar
as Dr. (Mrs.) Gaitonde was away at Calcutta. ' . ~.
,. . ,
. Secondly,. even the High ~urt ha• accepted the po_siiion thaf the E
( ·user of the suh cabin became. available ~o the respondent-plaintiff
.0._as a result of• his d!fect approach.
to late Dr.I Amonkar
. .
but through
.
the
_intervention and good offices of Dr. Rawalia, arid l)_e has fully supported ~
· ti1e Appellants-Defendants' case that such user was allowed to the
respondent~-plaintitfan the.same terms on ~hich he had been permitc.
ted the user of his cabin In-that Hospital, namely, b;causeof attach- . ,F
'-:-<( • 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 contradic-
tions (which were really omissions) that appeared in his evidence in
light of the averments made by hiin in his earlier Affidavits filed in the_
... proceedings, the main reason for° discarding his evidence has been
that he could not be regarded as disinterested witness because of his
G
'
close ties with the Amonkar fall)ily and that he had displayed-an
>-,"). · attitude of befog ever willing to sign any afii.davit or to swear to any~.,. · ;i.·,~~
;;......
thing'lo help whom· he had come to help; for instance,he had gone· to ·
the extent of saying "so. far I am not asked to go out but I an\ prepared . H
to go .as and when they will tell me to get out", wh1clt ·showed tltat ·. ·
'·"
' \
~
"
• • '·
'660 illJ!'REME COURT REPORTS (\1)84] _2 S.C.R.
he had identified ·himself with·.Amonkars. In cur.view these aspects r
f':would. not be good reasons for discarding his evidence. True, s0md of ~
.:'.his.answers do show that he was having dose ties .with the Amonkar
·family but.this is not unnatural if itis borne iQ mind th~.t he has been. •'
i<'.wotking with them ii:t that Hospital since 1954 and the.mere fact tht:t
· 'lie' has··s'tated that he was prepared to"go ;.,hene:ver Amonkars would
B rask him to go would not show that there was any private or secret-
: understanding between him and Amonkars as was sought to be. sug-
; gested by counsel for. the respon,dent-plaintiff. Since, he ,was a signa-.
i' tory to writing Exh. No. 2 all that he wanted \o convery was that his
·-
'user of the cabin wasbecause of his attachment as Honourary Surgcot~
: to Dr. Amonkar Hospital'and as such his ri'ght to occupy the· cabin
c •·;__would. come t" an end as and when his attachip.ent woula 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 .
. 11.1! admission against bis own ·interest, as it exposed him to imminent__ / .i.,. ,
· , risk .of eviction,
. '
and as such deserved commendation. Honouring'
one's
. ~·
··
, , ~word has. become a rare virtue tbese days and it would become_ rarer . '
"D · still if those who'display it are to be discredited like this. To disbelieve
" Dr. -Rawalia who showed his willingness to honour his word by stick-:
·. ing to the arrangement to which he "."a~ a signatory and fo5net behaving: '
111. the manner as :respondent-plamttff has done, would be a travesty._,
'of justice.
.; ; '
j
: Thlrdiy: turning to the do,oumentay eyidtinc, itmustheobserved J;
. Uhat the three.or fo11t receipt produced by the respondi:nt-plaintiff'
; showing monthly payments made by him would be of no avail bec!'nse
I' \he nature or the character of th<i payment, whether it was by way of
' compensation or towards ratable expenses, I
has no where. been indicated
. . ""
'in any of them. But s.o far as Exh .. No. 1 is concerned it is clear,that 'r
, :. this document in terms indicates that the respondent-plaintiff was"
; \~permitted, to use the suit ,cabin not on leave and licence basis but be-
' -cause of his attachment as Honouiary Surgeon to Dr. Amonkar Hospi-
~ tal and truiJ it contains a.categorical admission on'h.is par!'tJiat he was ·
... neither a tenant nor a licensee thereof. In cros~xamination respon_- .
G · . ~dent_:plaintiff admitted that be had signed this documen.t after. fully ..
"' .. :~understa,nding the contents thereof. If that be so, .his oral _testimon,Y,j
...' . . ·:.which runs-counter to the document cannot obv10usly .be accepted ' :.;._,..,.
:·unless, ·of, course: the document'is ·showu to have,,been obtained. by-
a
' late D~; ~monkar from. him °for the purpose of avoiding p_ossible~
objection that might be raised by 'the LI.C: and was not to be acted Up..
Ollllti lillgjlested by the FOspoudent:._plaintifr,, As. regards the motive or..
•
'
• ...
. .
• M.M. AMONKAR.
' '
v. . S.A. JOHARI.(Tu/zapurkar,
. . ' J.)
.
purpose for which the document wassaicl to ha~e be;,iiobt~ined.there A
are two cir£umstances which militate against it., Jn _the first place nt
the material time that is in May l 970 uniawful subletting· of promises '
was a. ground for eviction and not ihe giying it on leave and licence
bas'is:and. late Dr. Amonkar might have faced some difficu.Jty from his
own landlord, namely, L.·I.c. if he had sublet t~,e ~aid c~bin to the '
respondent-plaintiff but at that time it coufrf not be within the contem·
plation.of anybody to.seek protection ~gains! givlngpre~ises.on licence · '
a!So, and even so Ext. No ..! in terms records that respond.ent-pleintiff
was neither a ienarit nor a licensee -of the suii' cabin. Such·a double
.,ir---: protection wa~ un"necessary as agalnst the L.I.C. but: i.t was necessary
.. as against therespondent-plaintiffto.whoin late Dr. Amonkar want<d
' . to ensure th~t the use'r of the cabin w~s ·allowed only .fo the capacity c
of anattachea Honourary Surgeon to the Hospital and
- "" - in no ~ther
.
' '
·and that is-what" Ext. No: J says, In our vi.ew, the. motive suggested '
by the re.spondent-'plaiiitiff does noi fit in with the sifoati0n ·or stilte
·of affairs that existed in May,_1970 and. the document really records
the true transacti~n between-the parties; namely, that the· respondent-
. plaintiff was·alJow~d 'the user of the suit cabin because df his attacli- D
ment as, H<iuorary Surgeon to' Dr, Amonkar .H:ospital.·:_Secondiy, if
·. E.xt. No. 1 was not to be·acteci upon and it was·signed byr~spondent
plaintiff on the representation made.to him by late Dr, "Amonhr that
it wa~ simply for the purpose of protecting hli;nself against the L.fC. ·
and was not to M nsed against the respo.ndent-'-plaintiff, ihe re'spon-
I ,dent~plaintiff
.. could 'have obtained froiii. later
. Dr. Amonkar.a
. . writing
.
,1.._tl]at effect which he could have preserved'. ~or hjs own safety but no
.. such \Vriting was obtained by bin). from late Dr. Amonkar and, in our
· view, if.the respond.ent-plantiff's yersion were true that ExL No. 1- ·
had been obtained on.'tbe ·alleged representation two writings coul_d
·have been execute<\ and preserved by each for his· own safety'but this
.A -"'f was not done. Iftberef0 re, resp6ndent-p1aintiff's suggestiop as to
why Ext. No. 1 was obtained by late Dr. 'Amonkar from him' is not'
believable-and for the reasm;tS indicated above it is.riot-the respon-.
dent-'-plaintiff must be held bound·by the writing E>:l .. No. !;which
he execute~ after fully understanding the ·contents thereof and .his· oral"
testimony·that the user of the cabin was giv·eu to him on leave and ·
licence basis cannot be. accept~d. _1 · · , G.
. .
It may· be stated that the main reafon why the.-High Court felt
that Ext. No. I did not reflect the true' nature of the transaction between
.
the parties was that no documentary evidence was produced by the
. appellant~efendants to show that actually medical sorviees were
•
•
662 SUPRJlME COURT REPORTS - I [1984] 2~.C.R.
A _rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On
r-
· ~his point there was· merely tlie respondent~plaintiff's word as against
,.:ot)l.e testimony of defen{!a,nt No. 2 and Dr. Rawalia. Respondent-plain- .
. tiff claimed that he had not rendered any services to Dr. Amonkar
HosJ:itaras .an attached Honourary ·surgeon thereto ·while bo!l; the·
witnesss on the side of the appellant-<lefendanis asserted that con~
B aultations 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
Dr. 'Amonkar)--who had as per the High Court's view given evidence ~
1
·in" responsible and restrained manner-shouid not have been accepted •
·on the point. Defendant No. 2 had cle~rly stated in his evidence that
oonsultations with the respondent-plaintiff were ll.e!d whenever pre-
operative or :post-operative problems arose in maternity cases and this
was don~ at least 4 or 5 times a month and he was consulted in his
capacity as an Honorar¥ Surgeon ;:ittachec\ to the Hospital. ~t is true
that no documentary recorg of· such consultations was · produced
but whether any record of consultafions would be maintained or not
would depend upon the· nature. and t:vpe of consultations made and
it is eq1hlly possible that due to lapse of time 'that had occurred between
·auch consultations and the trial such record may not have been preser-
ved. In 'our view defendant No. 2:s evidence in this behalf heed not
have been rejected simply.' because no record of such consultations
• I, was produced. Furthermore the respondent· No. 2 admitted in his
evidence that ·he had made use of the Operation Theatre together with _~
\
the facilities attached thereto of Dr. Amorikar Hospital for performing
. operations· ,;-n his private patients a.nd though there is a controversy
as to whether such user of the Operation 'Theatre was freJ; .of charge
·or on payment, in our ·view such user of Operation Theatret 2gether
. F with the facilities atiached thereto would not have beell) perrnitt~d 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 respondent-
iaintiff obtained an interim injunction) the respondent· . plaintiff had
~o servant of liis own attached to the suit'cabin but he was getting the
iervices fro~·the inembers of the Hospital staff in the matter of sweep-
ing, cleaning and dusting. of hi~ cabin, ~ceivi~g .his. patients. m the·
. , commoi:i waiting room and ushrmg the~ mto his cabm for which no ..
5eparate payment was b~ing. made hr him. Were he _an mdepen~ent.'.'
· · lioeaiee of. the liuit cabin :!lnd not attached-to the Hospital such service.
, I . .
I
I
)
,. M.M. AMONKAR
. v. S.A. .JOHAR! (Tulzapurkar1) 663
A
would noLhave been mai!e available to him free. of charge.
' "
Jn our~\iew the aforesaid broad features emerging from the ·
evidence on record clearly ·)upport _the- e.ppellanis-i.\efeno.ants' cose
that the .user of the suit cabip.·was allowed to. the respondent-·plainti(f
..
not on leave and ~icence basis· but because Of his attachment" as: Honou- · B 1
rary Surgeon to Dr., Amonkar Ho~plta'I.' Such being our conclusion
4
on the factilal'issue it is un-necessary for us to deal with or discuss the . · '
'"-"' other two sen!i_'.legal iss~es that wore argµed before vs in the~ppeals. ·
•. . We are clearly of the view that the High_Court was .not right' in revers-
, .-~ ing the concurrent ,finding of fact recorded: by bpth the· courts below
~.
and even on merits the High Colirt judgment cannot be sustained: c
The. appeals are therefore allowed and the High Couri -judgment is·
set aside and the· concurrent firi!).ing of both the lower· courts ~n the.
facttial issue .is restored. 'The ·dismissal of the declaratory suit and
the findings in tii.e Eject:lnent Appiication E.A. No. 259/E of 1976 are •
confirmed. Parties will bear their re~.Pective costs tbr6tigho.ut.
D
•. .·tf
S.R.
·.-f ••
•
.__
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..
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