Bombay High Court
Ismail Gagjibhai Khokhar (Since ... vs Malukchand Raichand Doshi, Shri ... on 10 January, 2002
Author: J Chitre
Bench: J Chitre
JUDGMENT
J.G. Chitre, J.
1. Respondent is served but he is absent.
None present for him.
2. The petitioner is assailing the
correctness, propriety and legality of the
judgment and order passed by the Division Bench of
the Small Causes Court in Appeal No. 157/E of 1972
in R.A. Application No. 51/449/E of 1965.
3. By the said appeal, the judgment and
order passed by the trial Judge dated 18.2.1972
was challenged wherein the trial Judge answered
the preliminary issue viz., Whether the Respondent
is a tenant of the Applicant in respect of the
application premises and protected under the
provisions of the Bombay Rents Hotel and Lodging
House Rates Control Act.
4. Heard. Perused the judgment and order
passed by the Division Bench of Small Causes Court
as well as the judgment and order of the trial
Judge.
5. The facts can be stated as mentioned
hereinunder.
6. A proceeding started on an application
from the Petitioner before the Single Judge of the
Small Causes Court, Mumbai in view of Section 41
of the Presidency Small Causes Court Act. In the
said application, the present Petitioner averred
that he had taken a piece of land on rental from
the respondent and had constructed a structure on
it. Portion of the said premises came to be known
as Shop No. 3. It is the case of the applicant -
present petitioner - that he had given possession
of a portion of shop No. 3 to the respondent on
leave and licence basis by agreement dated
25.6.1963. He further averred that he revoked the
said leave and licence by letter dated 19.8.1964
as the respondent refused to comply with the
request of the original applicant, the present
petitioner.
7. The respondent took the defence that he
happens to be a tenant and not a licensee in spite
of the sham document of leave and licence
agreement. He contended that he happens to be in
exclusive possession of the said premises and was
required to pay the rent of Rs. 12/- per month for
the said flat as rent. An issue was raised in
view of Section 42 A of the Presidency Small
Causes Courts Act and the trial Court gave the
verdict in favour of the respondent holding him to
be the tenant.
8. The said judgment and order was assailed
by the present petitioner before the Division
Bench of the Small Causes Court by way of appeal
which was numbered as Appeal No. 157/E of 1972.
The Division Bench of the Small Causes Court
confirmed the said judgment and order passed by
the trial Judge and, therefore, the present
petitioner is praying for a writ of certiorari in
view of Article 227 of the Constitution of India.
9. Shri Rizvi, counsel for the petitioner,
submitted that the trial Court as well as the
appellate Court should have come to the conclusion
that the said premises were given to respondent as
a licensee. He pleaded that the real intention of
the parties should have been gathered from the
document and had that been properly done, both the
courts would have come to a conclusion that the
respondent happens to be a licensee and not more
than that. He prayed that both the judgments and
orders be set aside and the respondent be declared
as a licensee of the suit premises and vacant
possession of the suit premises be given to the
Petitioner.
10. It has been well settled right from
Chunchunu Jha's case that when the document is
expressing the intention of the parties clearly
and is not ambiguous, the meaning to be given to
the transaction should be exactly indicated by the
agreement in question. If there happens to be
the ambiguity, the Court may consider surrounding
circumstances. If that criteria is applied to the
present case, one cannot forget that the
respondent was in exclusive possession of the suit
premises and the landlord petitioner had no right
of inspection or entry or exit from the suit
premises as of a right. This exclusiveness of
the possession cannot be forgotten.
11. After examining the judgments and orders
passed by the Courts below, this Court does not
find it proper and necessary to issue the writ of
certiorari as prayed by the Petitioner while
exercising the jurisdiction in view of Article 227
of the Constitution of India. Thus, this writ
petition stands dismissed with costs and rule
stands discharged.
12. Parties to act on authenticated copy of
this judgment duly authenticated by the Private
Secretary of this Court.
