UNION BANK OF INDIAversusCHANDRAKANT GORDHANDAS SHAH

A                            UNION BANK OF INDIA
                                           v.
                    C'HANDRAKANT GORDHANDAS SHAH

                                SEPTEMBER 14, 1994

B                   [S. MOHAN AND M.K. MUKHERJEE, JJ.]

            Bombay Rents, Hotel and Lodging House Rates Control Act, 1947:
      Section 15-A.

C            Suit-Eviction-Unauthorised sub-letting-Claim for protection as a
       Protected Licensee-Concurrent findings offact as to unauthorised sub-let-
       ting-Terms of agreement suggesting that agreement was of lease and not
     . licence--iSection 15-A held inapplicable.

_D          Rent Control-Agreement-Lease or licence-Determination of-Inten-
      tion of parties-Exclusive possession-Significance and relevance of.

            Constitution of India, 1950: Article 226.

            Writ Jurisdiction-High Court-Power to _interfere with conament find-
B ings of fact.
             The appellant filed a suit for eviction of its tenant on the grounds of
      default in payment of rent and unlawful sub-letting to the respondent. The·
      respondent, who was impleaded as a party to the suit, contested the case
F     claiming that he was a lawful sub-tenant before May 21, 1959. Alternatively
      on the basis of a lease and licence agreement entered into with the tenant,
      he contended that he was a protected licensee under section 15-A of the
      Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The
      triJtl court held that _the- claim of the respondent that he had come to
      occupy the premises before May 21, 1959 was ba~eless. On appraisal of
G     evidence, examination of the ter-.ns of the agreement and in the light of the
      surrounding circumstances and also in view of the judgment in Sohan Lal
      Naraindas v. Loxmidas Raghunath Gadit, (1971] 1 S.C.C. 276, the trial
      court held that the .agreement was one of lease and not of licence and
      consequently the respondent was not entitled to protection under section
H     15-A. Holding that there was unauthorised sub-letting -in favour of the
                                          542
                       UNION BANK OF INDIA v. C.G. SHAH                      543

    respondent, the trial court decreed the appellant-landlord's suit.             A



-
          The appellate court concurred with the findings of the trial court
    and dismissed the appeal while affirming the findings of the trial court.
    The respondent filed a writ petition in the High Court which discussed the
    evidence afresh and set aside the concurrent finding of the facts of the B
    courts below and held that the respondent was merely a licensee and not
    a tenant. Accordingly, it dismissed the landlord's suit.

          In appeal to this court, it was contended on behalf of the appellant·
    landlord that the High Court erred in reversing the concurrent findings
    of facts in its writ jurisdiction; read in the context of surrounding cir·     C
    cumstances, the agreement was one of lease and not of licence.

         Allowing the appeal and setting aside the judgment of the High
    Court, this Court

          HELD : 1. It is trite that if the trial court and the appellate Court, D
    who are entrusted with the duty of investigating into questiol'S of fact
    record concurrent findings thereon on a proper discussion and apprecia·
    tion of the materials placed before them, the High Court should not
    interfere with or disturb those findings while sitting in judgemnt over the
    same in its writ judisdiction. (547-D]                                       E
          Rajbir Kaur v. Chokesiri & Co., (1989] 1 S.C.C. 19, relied on.

           2. Though some of the clauses of the agreement in Khalil Ahmed's
    case are similar to those of the instant case, yet the most important
    distinguishing feature is that while in that case the court found that there   F
    was restriction put upon the use of the premises by the appellant therein
    which negatived the case for lease, in the case in hand both the Courts of
    fact found that exclusive possession was given to the respondent. Further
    in both his written statements the respondent admitted that he was in
    exclusive use and occupation of the premises. (547-H, 548-A]                   G
        , Sohan Lal Naraindas v. Laxmidas Raghunath Gadi4 (1971] 1 S.C.C.
    276, referred to.

          Khalil Ahmed Bashir Ahmed v. Tafelhussein Samasbhai Barangpur-
    wala, .U.R. (1988) SC 184, distinguished.                            H
    544                   SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.

A           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 86 of
    1986.

         From the Judgment and Order dated 21.2.85 of the Bombay High
    Court in W.P. No. 2188 of 1979.

B        Soli J. Sorapjee, D.A. Dave, U.A. Rana and Rajiv Tyagi for Gagrat
    & Co. for the Appellant.

            P.K. Dey for Ms. Rani Jethmalani for the Respondent.

            The Judgment of the Court was delivered by
c
           M.K. MUKHERJEE, J. The only question which falls for determina-
    tion in this appe~ is whether the respondent is a deemed tenant of the
    landlord under section 15-A of the Bombay Rents, Hotel and Lodging
    House Rates Control Act, 1947 ('Act' for short) which confers such status
D   upon a person, who was on February 1, 1973 in occupation of any premises
    or any part thereof, which is not less than a room, as a licensee. Both the
    trial court and the appellate court answered the question in the negative
    recording concurrent findings that there was an unauthorised.subletting in
    favour of the respondent and decreed the suit filed by the appellant-
    landlord for his eviction, whereas the High Court, in its writ jurisdiction
E   revered those findings and dismissed the suit.

           The appellant filed the suit in 1966 for eviction of Mis H.D. Com-
    mercial Corporation (hereinafter referred to as the 'Corporation'), who
    was its monthly tenant in respect of one room in its building in Bombay on
p   the grounds of default in payment of rent and unlawful subletting of a
    partitioned portion of the room; (marked as BCDE' in the plan which was
    e~bited during trial as Ext.B and hereinafter referred to as the 'premises')
    to the respondent. Besides the Corporation and the respondent, the appel-
    lant impleaded some others as defendants as according to it they were also
G   in occupation of· the premises ~der them.

          Except the respondent no other defendant contested the suit, though
    the Corporation filed a written statement. In the first written statement
    filed on March 30, 1967 the respondent contended that he was a lawful
    sub-tenant of the Corporation in respect of the premises since before May
H   21, 1959, the day when the Bombay Act 49of1959 came into force giving
       UNIONBANKOFINDIA v. C.O.SHAH[M.K.MUKHERTEE,J.)                    545

protection to the existing sub-tenants and that, therefore, he was not liable   A
to be evicted.

      Subsequently in 1975 the respondent filed an additional written
statement reiterating his eariler stand as a lawful sub-tenant and pleading
an alternative case as a 'protected licensee' under section 15-A of the Act     B
brought in the Statute Book in 1973.

      During trial the respodent, while examining himself, asserted his
claim as a lawful subtenant since before May 21, 1959 and, alternatively, as
a protected licensee since before February 1, 1973 on the basis of a lease
and licence agreement (hereinafter referred to as the 'agreement') which        C
he entered into with the Corporation on March 12, 1964.

       On consideration of the evidence adduced before it the trial court
first held that the claim of the respondent that he had come to occupy the
premises before May 21, 1959 was baseless and on examination of the terms D
of the agreement in the light of the surrounding circumstances the Court
held that the respondent was a lessee and not a licensee entitled to
protection of Section 15- A of the Act. Accordingly, it decreed the suit for
unlawful subletting. In the appeal preferred against the judgment and
decree of the trial court the respondent however rested its case as a·
licensee under the agreement and not as a lawful subtenant since before E
1959. The appellate court concurred with all the findings of the trial court
and dismissed the appeal. Thereafter the respondent moved the High
Court by filing a writ petition which w~ allowed wiili a finding that he was
protected licensee (deemed tenant) of the premises.
                                                                                F
       It was submitted on behalf of the appellant that the High Court was
not at all justified in disturbing the concurrent findings of fact, recorded
by the trial court and the appellate court, in its writ jurisdiction. It was
further submitted that, in any event, if the agreement was read in the
·context of the surrounding circumstances, there was no escape from the
conclusion that it was one of lease, though intitutled as one of licence.    G
      The respondent, on the other hand, contended that the High Court
correctly interpreted the law and held that what was material was the
intention of the parties in executing the agreement. To ascertain the
intention the High Court examined the agreement minutely, and correctly         H
                          SUPREME COURT REPORTS [1994] SUPP. 3 S.<;:.R.

A   came to the conclusion that the respondent was merely a licensee and not
    a tenant. The respondent further submitted that in Khalil Ahmed Bashir
    Ahmed v. Tafelhussein Samasbhai Barangpurwala, AIR (1988) SC 184 this
    Court interpreted a document with similar terms and conditions as one of
    licence.
B
           On perusal of the judgment of the trial court we find that, to
    ascertain whether the agreement was one of lease or licence the Court first
    quoted tht: following passage from the judgment of this Court in Sohanlal
    Naraindas v. Laxmidas Raghunath Gadi~ [1971] 1 SCC 276 wherein the
    tests for such ascertainment were laid down :
c
            "Intention of the parties to an instrument must be gathered from
            the terms of the agreement examined in the light of the surrounding
             circumstances. The description given by the parties may be
             evidence of the intention but is not decisive. More use of the words
D            appropriate to the creation of a lease will not preclude the agree-
            ment operating as a licence. Arecital that the agreement does not
            create a tenancy is also not decisive. The crucial test in each case
            is whether the instrument is intended to create or not to create an
            interest in the property the subject matter of the agreeinerit. If it
            is in fact intended to create an interest in the property it is a lease.
E           If it does not it is a licence. In determining whether the agreement
            creates a lease or a licence the test of exclusive possession though
            not decisive, is of significance,"

    and on a threadbare discussion and proper appraisal of the evidence
F   adduced before it in the light of the above principle concluded that the
    agreement was one of lease and not of licence. The reasons which weighed
    with the trial court in drawing the above conclusion were that (i) the
    premises were given in exclusive possession of the respondent with a
    separate door to the same, (ii) the respondent was to pay compensation of
    Rs. 300 per month for use and occupation of the premises, (iii) the
G   transaction was one of business between strangers and not one for obliging
    or accommodating somebody on account of any relationship, friendship,
    sympathy or the like, (iv) though the agreement was initially for a period
    of eleven months with an option for renewal there was no evidence of
    exercise of such option and the respondent continued in occupation under
H   same terms and conditions, (v) though the agreenment was executed on
             UNION BANK OF INDIA v. C.G. SHAH [M.K. MUKHERJEE,J.)                 547

        March 12, 1964, in his first written statement, which was filed later on         A
        March 30, 1967, the respondent based his claim as a lawful sub-tenant and
     ·· reiterated such claim in his additional written statement filed on March 21,
        1975 while raising the alternative plea of licensee, and (vi) exept occasional
        visit of its owner, the Corporation lost interest in the-premises since about
        1963-64. The appellate court, also in its tern reconsidered and reappraised      B
        the evidence in the light of Sohanlal'.,s case (supra) while affirming the
        findings of the trial court.

             Coming now to the impugned judgment of the.High Court, we find
      that it also referred to the principles laid down by this .Court in Sohanlal's
      case (supra) and proceeded to ascertain the intention of the parties from          C
      the terms of the agreement in the light of the surrounding circumstances.
      In so doing the High Court discussed the evidence afresh and· set aside the
      concurrent findings of fact for reasons of its own.

            It is trite that if the trial Court and the appellate Court, who are
      entrusted with the duty of investigating into questions of fact record             D
      concurrent findings thereon on a proper discussion and appreciation of the
      materials placed before them, the High Court should not interfere with or
      disturb those findings while sitting in judgment over the same in its writ
      jurisdiction. Having carefully gone through the impugned judgment in the
      light of the materials on record we feel tempted to quote the following            E
      observations made by Venkatachaliah J. (as His Lordship then was) in
      Rajbir Kaur v. s. Chokesiri & Co., (1989) 1 sec 19 as they are also pertinent
      here:

                   "With respect to the High Court, we think, that, what the High
               Court did was what perhaps even an appellate court: with full             F
               fledged appellate jurisdiction, would, in the circumstances of the
               present case, have felt compelled to abstain from and reluctant to
               do."

            Coming now to the case of Khalil Ahmed Bashir Ahmed (supra) on
      which much reliance has been placed by the respondent we find that                 G
-1    though some of the clauses of the agreement are similar to those of the
      instant case, the most important distinguishing feature is that while in that
      case the court found that there was restriction put upon the use of the
      premises by the appellant therein which negatived the case for lease, in the
      case in hand both the Courts of fact found that exclusive possession was           H
    548                   SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.

A given to.the respondent. While on this point it is interesting to note that in
    both his written statements the respondent admitted that he was· in ex-
    clusive use and occupation of the premises.

           For the foregoing discussion, we allow this appeal, set aside the
    impugned judgment of the High Court so far as it set aside the decree of
B   eviction against the respondent and restore that of the trial court, as
    affirmed by the appellate court. However, in the circumstances of the case,
    there v.-ill be no order as to costs.

    T.N.A                                                      Appeal allowed.