Bombay High Court
Venkatesh Krishna Bhandarkar vs Mr. Henry D'Souza on 22 July, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:30500
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7130 OF 1999
SANTOSH
SUBHASH 1. Venkatesh Krishna Bhandarkar,
KULKARNI
residing at Jamshed Bldg., 1st floor,
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Jacob Circle, Mumbai - 400 011.
Date: 2025.07.22
22:06:03 +0530 Since deceased by his legal
representatives:
1a. Ashok Venkatesh Bhandarkar,
Age-59 years, residing at 1, Shirin
Talkies Buidling, K. Khadye Marg,
Sant Ghadge Maharaj Chowk,
Mumbai - 400 011.
1b. Krishna Venkatesh Bhandarkar
Age-64 years, residing at 1, Shirin
Talikes Building, K. Khadye Marg,
Sant Ghadge Maharaj Chowk,
Mumbai 400 011.
Since deceased by his legal
representative:
1b(i) Rhea Bhandarkar (Daughter),
Age-42 years, Occupation: Service,
R/o. Flat No. 15, Hempraba, N.S. Road,
Near Bank of Baroda, Marine Drive,
Mumbai 400 020.
1c. Uday Venkatesh Bhandarkar,
Age-55 years, residing at A-15,
Shanti Cooperative Housing Society,
Moghul Lane, Matunga (W),
Mumbai - 400016.
Since deceased by his legal
representative:
1c(i) Juhee Bhandarkar (Daughter),
Age: 37 years, Occupation: Service,
R/o. A-15, Shanti CHS, Mogul Lane,
Opp. Magnet Supermarket Mahim,
Mumbai 400 016.
1c(ii) Sailee Prabhir Correa (Daughter)
Age: 32 years, Occuation Service,
R/o B-801, Ashok Garden, Thokersay,
1/35
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Jivraj Road, Next to Dosti Flamingos,
Sewri (West),
Mumbai 400 015. ..Petitioners
Versus
1. Henry D'Souza,
carrying on business at Shop No.1,
Ground floor, Jamshed Bldg.,
Jacob Circle, Mumbai - 400 011.
Since deceased by his legal heirs.
1a. Edwin H. D'Souza (Son),
Age: 40 years, residing at Aamrapali
Coop Housing Society Ltd, 9/A/13,
Plot No. 5, Nagari Nivara, Parishad,
Goregaon (E), Mumbai - 400 065.
1b. William H. D'Souza (Son),
Age: 38 years, residing at Uttarayan
Coop Housing Society Ltd, F/13,
Sher-E-Punjab, Mahakali Caves Road,
Andheri (E), Mumbai - 400093.
1c. Godwin H. D'Souza (Son),
Age: 37 years, residing at Uttarayan
Coop Housing Society Ltd, F/13,
Sher-E-Punjab, Mahakali Caves Road,
Andheri (E), Mumbai - 400093.
1d. Ruby Wilson D'Mello (Married
Daughter),
Age: _years, residing at Pride of
Kalina Society, A/705, Sundernagar,
Kalina, Santacruz (E),
Mumbai - 400 098. ...Respondents
Mr. Arun Palekar, for the Petitioners.
Mr. Vivek Walavalkar, a/w Sameer R. Bhalekar, for
Respondent Nos.1a to 1d.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 3rd JULY, 2025
PRONOUNCED ON: 22nd JULY, 2025
JUDGMENT:
1. This Petition under Article 227 of the Constitution of India
assails the legality, propriety and correctness of a Judgment and
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Decree dated 27th November 1998 passed by the Appellate
Bench of the Court of Small Causes in Appeal No. 44 of 1993,
whereby the Appeal preferred by the deceased Plaintiff
(predecessor-in-title of Respondent Nos. 1a to 1d), came to be
partly allowed by setting aside the judgment and decree passed
by the Trial Court in RAD Suit No. 3041 of 1977, and thereby
declaring that the deceased Respondent-Plaintiff acquired the
status of a deemed tenant under Section 15A of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 ("the
Bombay Rent Act, 1947"), and the judgment and order dated
29th April 1999 in Review Petition - Interim Notice No. 5675 of
1998, whereby the said Interim Notice also came to be
dismissed.
2. Shorn of unnecessary details, the background facts
leading to this Petition can be stated as under:
2.1 For the sake of convenience and clarity the parties
are hereinafter referred to in the capacity in which they
were arrayed before the Trial Court in RAD Suit No. 3041
of 1977.
2.2 The Defendant - predecessor-in-title of Petitioner Nos.1a,
1b(i) and 1c(i) and 1c(ii) was the lessee of four shop premises
admeasuring 400 sq ft situated on the ground floor of Jamshed
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Builing at Jacob Circle, Mumbai 400 011, at the contractual
rent of Rs.200/- per month.
2.3 The Plaintiff asserted that in the month of November
1966, out of the said four shop premises, the Defendant had
allotted one room admeasuring 90 sq ft ("the Suit premises") on
a monthly compensation of Rs.150/- for the purpose of carrying
on the Plaintiff's tailoring business under the name and style of
"M/s Jude & Company".
2.4 The Plaintiff had been carrying on the business of
tailoring in the Suit premises in his own name and on his own
account and the Defendant had nothing to do with the said
business, save and except handing over the possession of the
Suit premises on leave and licence basis. The Defendant
accepted the amount of compensation till the month of January
1972. However, to camouflage the real transaction between the
parties, the Plaintiff used to write the words 'royalty', instead of
compensation, and "for conducting Bhandarkar Stores" on the
said receipts. No store either in the name of Bhandarkar or
otherwise had been given to the Plaintiff for conducting
Bhandarkar Stores as shown in the receipts.
2.5 After the aforesaid prelude, the Plaintiff asserted, the
Defendant induced the Plaintiff to execute an agreement dated
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29th January 1972 purportedly for conducting "Bhandarkar
Stores" in the Suit premises for a period of one year
commencing from 1st November 1971 on payment of royalty of
Rs.150/- per month, with the security deposit of Rs.3000/-. The
Plaintiff avers, the said agreement was, in fact, as and by way of
a leave and licence agreement. The intention between the parties
was to grant permission to the Plaintiff to use and occupy the
Suit premises on a monthly compensation of Rs.150/-. The
initial leave and licence agreement in favour of the Plaintiff since
the year 1966 was renewed from time to time. Even the
agreement dated 29th January 1972 incorporated a renewal
clause.
2.6 On 1st February 1973, according to the Plaintiff, the said
leave and licence agreement dated 29th January 1972 was valid
and subsisting, and, therefore, the Plaintiff become a protected
licencee/statutory tenant qua the Suit premises.
2.7 Hence the Suit for a declaration that the Plaintiff was a
protected licencee qua the Suit premises and the consequential
relief of injunction to restrain the Defendant from dispossessing
the Plaintiff from the Suit premises and to fix the standard
licence fee, compensation and/or rent in respect of the Suit
premises.
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3. The Defendant resisted the Suit by filing Written
Statement.
3.1 It was contended that the Plaintiff was allowed to enter
into the Suit premises as the conductor of the Defendant's
business "Bhandarkar Stores". There was never any relationship
of licensor and licensee. Thus, the Plaintiff had no independent
right as a licencee qua the Suit premises. It was categorically
denied that the Suit premises was given to the Plaintiff in the
month of November 1966 at a monthly compensation of Rs.
150/- for the purpose of carrying on Plaintiff's tailoring
business. The Plaintiff had, according to the Defendant,
requested the Defendant to allow the Plaintiff to keep a sewing
machine in the Suit premises. However, that concession did not
change the real nature of relationship between the parties.
3.2 The Defendant contended that there was no subsisting
licence between the Plaintiff and the Defendant. When the
Plaintiff was put in possession of the Suit premises, Bhandarkar
Stores was very much run from the Suit premises. The Plaintiff
was simply allowed to run the Bhandarkar Stores along with its
furniture, fixture and fittings.
3.3 It was categorically denied that the agreement dated 29 th
January 1972 was a leave and licence agreement. Nor the
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intention of the parties to the said agreement was ever to create
the relationship of licensor and licencee. Therefore, the question
as to whether there was a subsisting licence as on 1 st February
1973 was of no significance.
4. The learned Judge, Court of Small Causes, settled the
issues. The parties led evidence. The Plaintiff examined himself
and his brother, Ralf D'Souza (P.W.2). On his part, the
Defendant (DW-1) entered into the witness-box.
5. After appraisal of the evidence and the material on record,
the learned Judge was persuaded to dismiss the Suit observing,
inter alia, that the Plaintiff failed to prove that the Defendant
had allowed the Plaintiff to use the Suit premises on monthly
compensation of Rs.150/- since November 1966, that the
Plaintiff was in exclusive use and occupation of the Suit
premises as of 1st February 1973 under a valid and subsisting
licence and that the Plaintiff become a deemed tenant in respect
of the Suit premises.
6. Being aggrieved, the Plaintiff preferred Appeal No. 44 of
1993. By the impugned judgment and order dated 27 th
November 1998, the Appellate Bench of the Court of Small
Causes was persuaded to reverse the findings of the Trial Judge
and hold that, if read in the context of the attendant
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circumstances, it appeared that the agreement dated 29 th
January 1972 was a leave and licence agreement and it was also
valid and subsisting on 1st February 1973 as the Defendant had
impliedly renewed the licence. Therefore, the Plaintiff was
entitled to protection under Section 15A of the Bombay Rent Act
1947.
7. Being aggrieved, the Defendant-predecessor-in-title of
Petitioner Nos. 1a, 1b(i) and 1c(i) and 1c(ii), invoked the writ
jurisdiction.
8. I have heard Mr. Palekar, the learned Counsel for the
Petitioner, and Mr. Walawalkar, the learned Counsel for the
Respondent, at some length. With the assistance of the learned
Counsel for the parties, I have also perused the evidence and
the material on record.
9. Before adverting to the core controversy involved in this
Petition, it may be apposite to note that there is no dispute over
the fact that the original Defendant was a tenant of the shop
premises. The jural relationship between the Defendant and the
owner of the shop premises, including the suit premises, is not
in dispute. The execution of the agreement dated 29 th January
1972, as such, is also not put in contest. On the plain terms of
the said agreement it becomes evident that the term expired
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after one year commencing from 1 st November 1971, i.e. on 31 st
October 1972. Incontrovertibly the protection envisaged by
Section 15A of the Bombay Rent Act 1947 to a subsisting
licencee came into effect from 1st February 1973. The
controversy between the parties, essentially revolves around the
character of the said Agreement and the jural relationship
formed thereunder.
10. The substance of the claim of the Plaintiff was that the
said conducting agreement was a camouflage and the real
relationship between the parties was that of a licensor and
licencee. In contrast, the Defendant stressed upon the apparent
tenor of the agreement to buttress his case that it was a mere
conducting agreement.
11. Mr. Palekar, the learned Counsel for the Petitioners,
mounted a multi-pronged challenge to the impugned judgment
and decree. First and foremost, the Appellate Bench committed
grave error in construing the document. In the process, the
Appellate Bench lost sight of the fact that there was no pleading
questioning the character of the document. In the absence
thereof, the Appellate Bench could not have constructed a case
for the Plaintiff which was not at all pleaded by the Plaintiff.
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12. Secondly, Mr. Palekar would submit that, the Appellate
Bench committed a manifest error in taking into account the
purported surrounding circumstances to construe the nature of
the document when the intent of the parties was explicitly
evincible from the plain and unambiguous words of the said
agreement. There was no occasion for the Appellate Court to
delve into the purported attendant circumstances to gather the
intention of the parties.
13. Thirdly, the evidence sought to be adduced by the Plaintiff
was of no significance in the absence of pleading. The Appellate
Bench could not have delved into parol evidence to ascertain
the intent of the parties. To buttress these submissions, Mr.
Palekar, placed reliance on the judgments of the Supreme Court
in the cases of D. H. Maniar and Ors Vs Waman Laxman
Kudav,1 M/s A.V.R. and Co and Ors Vs Fairfield Cooperative
Housing Society Ltd & Ors,2 Mangala Waman Karandikar (D)
Through LRs Vs Prakash Damodar Ranade 3 and a Division
Bench judgment of this Court in the case of Peter Alex D'Souza
Vs Prithi Paul Singh.4
1 AIR 1976 SC 2340.
2 AIR 1989 SC 81.
3 2021 (4) ALL MR 376 (S.C.)
4 2002(3) Mh.L.J. 437.
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14. In any event, according to Mr. Palekar, as of 1st February
1973, the agreement dated 29th January 1972 had expired by
efflux of time. It was not the case of the Plaintiff that the said
agreement was renewed thereafter. In these circumstances, it
was not open for the Appellate Bench to hold that the
agreement dated 29th January 1972 was renewed by stretching
the case of the Plaintiff beyond imagination.
15. In opposition to this, Mr. Walavalkar, the learned Counsel
for the Respondent-Plaintiff, would urge that the Appellate
Bench of the Court of Small Causes, has correctly appreciated
the evidence and material on record. Taking the Court through
the recitals of the said agreement, Mr. Walavalkar, would urge, a
cumulative reading of the said agreement, would lead to no
other inference than that of the licensor and licencee
relationship, that was established between the parties.
16. To buttress the aforesaid submission, Mr. Walavalkar took
the Court through the pleadings of the parties and the terms of
the said agreement. Laying particular emphasis on Clauses 11
and 13 of the said agreement, it was vehemently urged that
those Clauses permitting renewal of the said agreement and
allowing the Defendant to bring the sewing machine and allied
articles for the business of tailoring, militate against the claim
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of the Defendant that the said agreement dated 29 th January
1972 was a bare conducting agreement.
17. Mr. Walavalkar made an earnest endeavour to impress
upon the Court that the attendant circumstances, documents
and admissions elicited in the cross-examination justify an
inference that the said agreement was in essence one of leave
and licence and its apparent tenor was a camouflage. The thrust
of the submission of Mr. Walavalkar was that, the evidence on
record makes it abundantly clear that the Plaintiff was put in
exclusive possession of the Suit premises and there was not an
iota of evidence to show that any business was entrusted to the
Plaintiff.
18. Lastly, Mr. Walavalkar would urge, the renewal of leave
and licence agreement was not necessarily required to be
effected by another agreement in writing. Renewal could be
inferred from the attendant circumstances and the course of the
conduct of the parties, and thus construing, the Appellate
Bench has rightly held that as of 1st February 1973, the leave
and licence agreement was valid and subsisting.
19. To lend support to these submissions, Mr. Walawalkar
placed reliance on the judgments of the Supreme Court in the
cases of Smt. Gangabai w/o Rambilas Gilda vs. Smt. Chhabubai
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w/o Pukharajji Gandhi,5 Delta International Ltd Vs Shyam
Sundar Ganeriwalla And Anr,6 V. Anantha Raju & Anr Vs T.M.
Narasimhan & Ors,7 N. N. Dogra through Legal Heir Ajay N.
Dogra Vs Mira J Pahlajani through Legal Representative and
Ors8 and Chogalal Santokhji Raval Vs Sjamkarprasad Jagnath
Varma9.
20. The aforesaid submissions now fall for consideration.
21. Two pivotal questions arise for consideration. Firstly, what
was the nature of the jural relationship evidenced by the
Agreement dated 29th January, 1972; was it a bare business
conducting agreement or a licence to use and occupy the suit
premises? Secondly, if it is found that the Plaintiff was a
licencee, whether the licence was subsisting on 1 st February,
1973 and thereby the Plaintiff became entitled to protection
under Section 15A of the Bombay Rent Act, 1947?
22. As noted above, there is no controversy over the execution
of the agreement dated 29th January, 1972. The core controversy
revolves around the jural relationship formed thereby. The
thrust of the submission of Mr. Palekar was that, if the terms of
5 (1982) 1 SCC 4.
6 (1999) 4 SCC 545.
7 (2021) 17 SCC 165.
8 2024 SCC OnLine Bom 2714.
9 Writ Petition No. 5177 of 1996 decided on 27th September 2024.
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the agreement are read as a whole, no other intention than that
of handing over the business for conducting the same, upon
payment of royalty to the Defendant, is evincible. The intention
of the parties, it is well recognized, must be gathered from the
words used by the parties in the agreement. The approach of
the Appellate Court in searching for the intent of the parties to
the agreement by examining extraneous circumstances has
vitiated the ultimate finding, urged Mr. Palekar.
23. In construing a contract, the primary and ordinary rule is
that the Court must construe the plain words used in the
contract. If the words are clear and unambiguous, the Court
has to gather the intention of the parties from those very words
and give effect to the jural relationship thereby formed. The
Court has to look at the pith and substance of the document
and not its form. Nor the nomenclature of the document or the
label given by the parties thereto is of decisive significance.
However, where the true meaning of the words used in the
document is not clearly discernible and the intent of the parties
to the document becomes doubtful, it would be legitimate to
inquire into the attendant circumstances, to ascertain the real
intent of the parties. It is also well settled that a contract is to
be construed with reference to its object and whole of its terms.
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24. A useful reference, in this context, can be made to the
decision of the Supreme Court in the case of Provash Chandra
Dalui and another vs. Biswanath Banerjee and another 10,
wherein the Supreme Court delineated the approach to be
adopted by the Courts in the mater of construction of a
contract. Paragraph 10 of the said judgment reads as under:
"10. "Ex praecedentibus et consequentibus optima fit
interpretatio.' The best interpretation is made from the
context. Every contract is to be construed with reference to
its object and the whole of its terms. The whole context must
be considered to ascertain the intention of the parties. It is
an accepted principle of construction that the sense and
meaning of the parties in any particular part of instrument
may be collected 'ex antecedentibus et consequentibus;'
every part of it may be brought into action in order to collect
from the whole one uniform and consistent sense, if that is
possible. As Lord Davey said in N.E. Railway v. Hastings,
[1900] A.C. 260 (267),
..... the deed must be read as a whole in order to
ascertain the true meaning of its several clauses, and
the words of each clause should be so interpreted as
to bring them into harmony with the other provisions
of the deed if that interpretation does no violence to
the meaning of which they are naturally susceptible.
In construing a contract the Court must look at the words
used in the contract unless they are such that one may
suspect that they do not convey the intention correctly. If the
words are clear, there is very little the Court can do about it.
In the construction of a written instrument' it is legitimate in
order to ascertain the true meaning of the words used and if
that be doubtful it is legitimate to have regard to the
circumstances surrounding their creation and the subject
matter to which it was designed and intended they should
apply.
(emphasis supplied)
25. In a recent pronouncement in the case of Annaya Kocha
Shetty (Dead) through LRs. vs. Laxmibai Narayan Satose since
10 1989 Supp (1) Supreme Court Cases 487.
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deceased through LRs and others 11, also a matter revolving
around the construction of business conducting agreement,
after following the pronouncement in the case of Provash
(supra), the Supreme Court summarized the principles in the
matter of construction of documents as under:
"17. The guide to the construction of deeds and tools adopted
can broadly be summarised as follows:
17.1 The contract is first constructed in its plain, ordinary
and literal meaning. This is also known as the literal rule of
construction.
17.2 If there is an absurdity created by literally reading the
contract, a shift from literal rule may be allowed. This
construction is generally called the golden rule of construction.
17.3 Lastly, the contract may be purposively constructed in
light of its object and context to determine the purpose of the
contract. This approach must be used cautiously."
(emphasis supplied)
26. On the aforesaid touchstone, reverting to the construction
of the agreement in question, it would be necessary to extract
the material terms of the agreement. The following clauses of
the agreement dated 29th January, 1972, bear upon the
determination of the controversy.
"1. The Owner has agreed to give and the Hirer has agreed
to take for running and conducting the said business in the
name of BHANDARKAR STORES situate at Shop No.1 on the
ground floor of Jamshed Building, Clarke Road, Jacob Circle,
Bombay 11 for a period of one year commencing from 1st Day
of November 1971 and ending on 31st day of October 1972
(both days inclusive). The Owner has put the Hirer in charge of
the said BHANDARKAR STORES together with all the materials
and things lying the min and the fixtures and fittings as per
schedule hereto annexed with effect from the 1st day of
November 1971.
11 2025 SCC OnLine SC 758.
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2. The Hirer has agreed to deposit with the Owner a sum of
Rs. 3000/-(Rupees Three Thousand only) as and by way of
security deposit for the proper performance of the terms and
conditions of this Agreement. The said deposit amount shall
bear no interest and shall be refundable to the Hirer when this
Agreement comes to an end and after the Hirer removes himself
from the stores. The Owner shall be entitled to deduct from this
deposit amount any moneys legally due to him by the Hirer
under the provisions of this Agreement.
3. The Hirer shall pay to the Owner as and by way of
Royalty a sum of Rs. 150/- (Rupees One Hundred Fifty only)
per month. The amount of royalty for the month shall be
payable in advance on or before the 5th day of every month
commencing from the 5th day of November 1971 and thereafter
on or before the 5th day of every succeeding month.
4. The Owner shall be liable to pay the rent of the business
premises where the said Store is situate to the landlord every
month. However the Hirer shall be liable to pay the electricity
charges, licence fees and all other rates, taxes and dues
applicable to the business that he may conduct during the
period of this agreement.
.....
8. During the continuance of this agreement the Hirer shall
not be liberty to appoint a subcontractor or contractors under
him in respect of the said business assign his rights to any
other person or persons or to pledge, mortgage or hypothecate
and transfer the interest in any way of the said business known
as "BHANDARKAR STORES" and/or its assets to any other
person or persons or purchase the stores requirements either
in the name of the Owner or in the name of the Stores or add,
alter or remove any of the things, fixtures and fittings now
entrusted to the Hirer except without the written consent of the
Owner.
......
10. It is agreed by and between the parties that they have no
intention to create any rights of tenancy or sub-tenancy in
favour of the Hirer in respect of the said business premises.
11. It is agreed by and between the parties that the period of
this Agreement may be extended by mutual consent of the
parties.
......
13. The Hirer is allowed to bring his sewing machines and
allied articles for the business of tailoring at his own costs and
risks. The Owner shall not be responsible for any loss or theft
of the articles of machinery etc. brought by purpose of his
business.
......
15. Upon the expiry of the term herein granted or sooner
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determination of these presents as provided above, the Hirer
shall deliver possession of the said stores to the Owner along
with the fixtures and fittings and articles and things of the
Owner mentioned in the Schedule hereto annexed subject to
the reasonable wear and tear thereof and the Owner shall
refund to the Hirer the said deposit amount of Rs.3000/-
(Rupees three thousand only) subject to deduction if any as
provided thereinabove,"
27. On a plain reading of the aforesaid terms of the
agreement, it becomes evident that the business in the name of
Bhandarkar Stores, situated at the suit premises, was agreed to
be run and conducted by the Plaintiff for the period of one year
commencing from 1st November, 1971. Royalty was agreed to be
paid at the rate of Rs.150/- per month. The Defendant was
liable to pay the rent of the suit premises to the landlord.
However, the other charges, like electricity consumption, licence
fees, rates, taxes and cess, were to be paid by the Plaintiff. The
Plaintiff was restrained from appointing a sub-contractor and
creating any third party interest in any form in the said
business. The parties expressly agreed that, they did not intend
to create any tenancy or sub-tenancy in favour of the Plaintiff.
Clause 11 made a provision for renewal of the agreement by
mutual consent of the parties. Under Clause 13, the Defendant
was allowed to bring sewing machine and allied articles for the
tailoring business.
28. Cumulatively, one gets an impression that the apparent
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tenor of the agreement dated 29 th January, 1972 was that of a
business conducing arrangement. This apparent tenor of the
agreement was the foundational premise of the submission on
behalf of the Defendant that the Plaintiff could not have
adduced evidence in derogation of the express terms of the
agreement. The bar contained in Section 92 of the Indian
Evidence Act which excludes evidence of oral agreement to the
contrary, according to Mr. Palekar, applied with full force and
vigor.
29. In the case of Mangala Karandikar (supra) the Supreme
Court after adverting to the provisions contained in Sections 91
and 92 of the Evidence Act, enunciated that it is manifest from
those sections that it was only in cases where the terms of the
document leave the question in doubt, then resort could be had
to the proviso. But when a document is a straightforward one
and presents no difficulty in construing it, the proviso does not
apply. If the contrary view is adopted as correct, it would render
Section 92 of the Evidence Act otiose and also enlarge the ambit
of proviso 6 beyond the main Section itself. Such interpretation,
(as was provided by the High Court) violates basic tenets of legal
interpretation. Section 92 specifically prohibits evidence of any
oral agreement or statement which would contradict, vary, add
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to or subtract from its terms. If oral evidence could be received
to show that the terms of the document were really different
from those expressed therein, it would amount to according
permission to give evidence to contradict or vary those terms
and as such it comes within the inhibitions of Section 92. It
could not be postulated that the legislature intended to nullify
the object of Section 92 by enacting exceptions to that section.
30. At this juncture, it is necessary to consider the nature of
the Plaintiff's claim. If the averments in the plaint are read as a
whole, it becomes abundantly clear that the Plaintiff's case is
not that the terms of the agreement executed by and between
the parties were different than as expressed. The Plaintiff's case
was that the agreement did not incorporate the true jural
relationship which the parties intended to form. The real
transaction between the parties was altogether different than
the one which finds expression in the agreement.
31. The aforesaid nature of the Plaintiff's claim makes a
critical difference. There is an essential distinction between a
case where a party assails or contradicts the contents of the
document and a case where the very character of the document
is put in contest. In the latter case, the essence of the claim is
that the parties never intended to form the relationship which is
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evident from the apparent tenor of the document. In such a
case, the bar under Section 92 of the Evidence Act may not
apply with the strict rigour.
32. In the case of Smt. Gangabai (supra) the Supreme Court
had an occasion to consider the nature and import of the
interdict contained in sub-section (1) of Section 92. The
Supreme Court pointed out the distinction in the matter of
challenge to the contents of the document, as such, and the
character thereof, in the following words:
"11. ..... It is clear to us that the bar imposed by sub-s. (1) of
s. 92 applies only when a party seeks to rely upon the document
embodying the terms of the transaction. In that event, the law
declares that the nature and intent of the transaction must be
gathered from the terms of the document itself and no evidence
of any oral agreement or statement can be admitted as between
the parties to such document for the purpose of contradicting or
modifying its terms. The sub- section is not attracted when the
case of a party is that the transaction recorded in the document
was never intended to be acted upon at all between the parties
and that the document is a sham. Such a question arises when
the party asserts that there was a different transaction
altogether and what is recorded in the document was intended to
be of no consequence whatever. For that purpose oral evidence is
admissible to show that the document executed was never
intended to operate as an agreement but that some other
agreement altogether not recorded in the document, was entered
into between the parties. (Tyagaraja Mudaliyar and another v.
Vedathanni AIR 1936 PC70)."
(emphasis supplied)
33. A Three-Judge Bench of the Supreme Court in the case of
V. Anantha Raju and Another vs. T. M. Narasimhan and others 12
after following the aforesaid pronouncement and the judgment
12 (2021) 17 Supreme Court Cases 165.
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in the case of Roop Kumar vs. Mohan Thedani 13, reiterated the
position in law as under:
"34. This Court has further held in Roop Kumar case that
Sections 91 and 92 of the Evidence Act would apply only when
the document on the face of it contains or appears to contain all
the terms of the contract. It has been held that after the
document has been produced to prove its terms under Section
91, the provisions of Section 92 come into operation for the
purpose of excluding evidence of any oral agreement or
statement for the purpose of contradicting, varying, adding or
subtracting from its terms. It has been held that it would be
inconvenient that matters in writing made by advice and on
consideration, and which finally import the certain truth of the
agreement of parties should be controlled by averment of the
parties to be proved by the uncertain testimony of slippery
memory. It has been held that when parties deliberately put
their agreement into writing, it is conclusively presumed,
between themselves and their privies, that they intended the
writing to form a full and final statement of their intentions,
and one which should be placed beyond the reach of future
controversy, bad faith and treacherous memory.
24. Though referring to Gangabai w/o Rambilas Gilda (Smt.)
v. Chhabubai w/o Pukharajji Gandhi (Smt.) and Ishwar Dass
Jain (Dead) Through Lrs. v. Sohan Lal (Dead) by Lrs. (2000) 1
SCC 434, it has been held that it is permissible for a party to a
deed to contend that the deed was not intended to be acted
upon, but was only a sham document, it would be necessary to
lead oral evidence to show that the document executed was
never intended to operate as an agreement but that some other
agreement altogether, not recorded in the document, was
entered into between the parties."
34. The legal position which thus emerges is that a party to
the document may assail the document by contending that the
parties had never intended to form the relationship which the
apparent tenor of the document indicates, but an altogether
different transaction was entered into by the parties and the
express terms of the agreement in question do not reflect the
13 (2003) 6 SCC 595.
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true intention of the parties and, thus, are inconsequential. In
the case at hand, it has to be examined whether the Plaintiff
has succeeded in making out such a case.
35. For an answer, a brief recourse to the pleadings and
evidence on record becomes necessary. The case of the Plaintiff
is that the Plaintiff was put in possession of the suit premises in
the year 1967 as a licencee thereof. The Defendant accepted the
licence fee/compensation, however in the receipts that were
issued the compensation was termed royalty. There was no
running business which was entrusted to the Plaintiff. The
Plaintiff was induced to execute the agreement dated 29 th
January, 1972 purportedly to conduct the business in the suit
premises, however the real transaction between the parties was
that of licence to use and occupy the suit premises for tailoring
business.
36. The aforesaid pleadings, in my considered view, satisfy the
requirements of necessary foundation in the plaint to support
the case that the real intention of the parties was to form the
jural relationship of licensor and and licencee and the
agreement dated 29th January, 1972 was a camouflage.
37. Is there any evidence which lends credence to the
aforesaid claim of the Plaintiff? To begin with, the very
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agreement dated 29th January, 1972, gives an indication about
the said agreement not being the sole repository of the
transaction between the parties. One year's term of licence was
to commence from 1st November, 1971 and expire on 31 st
October, 1971. Since the agreement was executed on 29 th
January, 1972, it implies that the Plaintiff had been in the
frame, even prior to the execution of the said agreement.
Secondly, the Defendant conceded in the cross-examination in
no uncertain terms that the business of Bhandarkar Stores was
given to the Plaintiff, albeit for conducting, in the year 1967,
after Mr. Shirke, who was allegedly conducting the business
therein during the period 19 th August, 1966 September, 1967,
closed down the business. The Appellate Bench has recorded
that a number of agreements incorporating identical terms
(Exhibit-11 Coll.), were executed between the parties. The
receipts of payment of royalty, commencing from the month of
December, 1967 to July, 1971 (Exhibit-F Coll.) further indicate
that before the execution of agreement dated 29 th January,
1972, the Plaintiff had been in the occupation of the subject
premises.
38. What was the nature of the occupation of the Plaintiff, is
at the heart of the matter. Before adverting to the evaluation of
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evidence on the said aspect, it may be necessary to note what a
"licence" connoted under the Bombay Rent Act, 1947. Under
Section 5(4A), the term "licencee" was defined as under:
"Section 5(4A) "licencee", in respect of any premises or any part
thereof, means the person who is in occupation of the premises
or such part, as the case may be, under a subsisting agreement
for licence given for a licence fee or charge; and includes any
person in such occupation of any premises or part thereof in a
building vesting in or leased to a co-operative housing society
registered or deemed to be registered under the Maharashtra
Co-operative Societies Act, 1960; but does not include a paying
guest, a member of a family residing together, a person in the
service or employment of the licensor, or a person conducting a
running business belonging to the licensor , [or a person having
any accommodation for rendering or carrying on medical or
para-medical services or activities in or near a nursing home,
hospital or sanitorium,] or a person having any accommodation
in a hotel, lodging house, hostel, guest house, club, nursing
home, hospital, sanitorium, dharmashala, home for widows,
orphans or like premises, marriage or public hall or like
premises, or in a place of amusement or entertainment or like
institution, or in any premises belonging to or held by an
employee or his spouse who on account of the exigencies of
service or provision of a residence attached to his or her post or
office is temporarily not occupying the premises, provided that
he or she charges licence fee or charge for such premises of the
employee or spouse not exceeding the standard rent and
permitted increases for such premises, and any additional sum
for services supplied with such premises, or a person having
accommodation in any premises or part thereof for conducting
a canteen, creche, dispensary or other services as amenities by
any undertaking or institution; and the expressions "licence",
"licensor" and "premises given on licence" shall be construed
accordingly;]
39. Evidently, the definition of licencee excludes a number of
persons from its ambit. Inter alia, a person conducting a
running business belonging to the licensor does not satisfy the
description of a licencee. The aforesaid exclusion would thus
require proof of two facts. First, conduct of a running business.
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Second, such business ought to belong to the licensor. If it can
be demonstrated that what was given to the person claiming to
be a licensee was a running business, which was thitherto
carried on by the licensor, the transaction would fall within the
ambit of a conducting agreement.
40. Since the prior agreements and the agreement in question
do indicate the apparent tenor of the relationship between the
parties and the receipts, in turn, record that the payment was
towards royalty, it could be urged that since inception the
Plaintiff was merely conducting the business in the suit
premises, in contradistinction to being permitted to use and
occupy the suit premises for the purpose of Plaintiff's own
business. However, the evidence and material on record shows
to the contrary.
41. On the one hand, there is positive material to indicate that
a tailoring business was being carried on in the suit premises
since the induction of the Plaintiff. The registration certificates
issued under the Bombay Shops and Establishments Act, 1948,
since the year 1968, indicate that the tailoring shop was run
from the suit premises. The Defendant was shown as the owner
and the Plaintiff conductor thereof. What was conspicuous by
its absence was, the name of the store i.e. Bhandarkar Stores
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and the business that was run from the suit premises. Instead,
the name of the establishment was shown "Jude and Company",
the name under which the Plaintiff claimed to have carried on
the business of tailoring. On the other hand, in the cross-
examination, the Defendant conceded in unequivocal terms that
when the Defendant gave the business of Bhandarkar Stores to
the Plaintiff, there was no stock in trade and no running
business in the said store. The Defendant went on to further
concede that since in the year 1971, the Plaintiff had changed
the nature of the business. Though the store was there in the
suit premises, the Plaintiff was giving more prominence to the
tailoring business.
42. The aforesaid admissions in the cross-examination were
required to be appreciated in the light of the fact that the
Plaintiff had been in the occupation of the suit premises since
December 1967, in the least. The agreement in question came
to be executed in the month of January 1972. For all these
years, the Plaintiff was shown to have been running tailoring
shop in the suit premises. Conversely, there was not a shred of
evidence to show that the business of Bhandarkar Stores was
being conducted by the Defendant and it was handed over to the
Plaintiff. Thus, it appears that the material on record does not
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justify an inference that there was a running business,
belonging to the Defendant, which was given for conducting to
the Plaintiff. It appears that as late as 1977, the Defendant
professed to terminate the said agreement in response to the
notice by the Plaintiff.
43. In the backdrop of the aforesaid evidence, the Appellate
Bench was justified in construing the Agreement dated 29
January 1972 as not incorporating the real nature of the
transaction between the Plaintiff and Defendant.
44. Reliance placed by Mr. Palekar on a judgment of this
Court in the case of Fatimabai Noor Mohamed V/s. Khallil
Ahmed and Anr.14 does not advance the cause of the submission
on behalf of the Petitioners, as in the said case, the Plaintiff had
suppressed the agreement under which he came in possession
of the suit premises. I am, therefore, persuaded to hold that
there was no error on the part of the Appellate Court in holding
that the relationship between the Plaintiff and the Defendant
was that of licencee and licensor.
45. This propels me to the question as to whether the Plaintiff
was entitled to protection under Section 15A of the Bombay
Rent Act, 1947. Mr. Palekar urged, with a degree of vehemence
14 1990(1) Bom.C.R.605
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that even if the case of the Plaintiff is taken at par, the
agreement dated 29 January 1972 had expired by 31 st October
1973. Since there was no valid and subsisting licence as of 1
February 1972, the Plaintiff was not entitled to protection under
Section 15A of the Act.
46. Section 15A of the Bombay Rent Act, 1947 reads as
under :
"15A. Certain licensees in occupation on 1st February 1973 to
become tenants.
(1) Notwithstanding anything contained elsewhere in this Act or
anything contrary in any other law for the time being in force,
or in any contract where any person is on the 1st day of
February 1973 in occupation of any premises, or any part
thereof which is not less than a room, as a licensee he shall on
that date be deemed to have become, for the purpose of this
Act, the tenant of the landlord, in respect of the premises or
part thereof, in his occupation.
(2) The provisions of sub-section (1) shall not affect in any
manner the operation of sub-section (1) of section 15 after the
date aforesaid."
47. The Bombay Rent Act, was amended by the Maharashtra
Act of 1973. By the amending Act, Section 5(4A) and Section 15
were introduced in the Parent Act, to confer on the licencees
who were in the occupation of the premises on 1 February 1973,
the status and protection of a tenant under the Bombay Rent
Act.
48. From the phraseology of Section 15A of the Act, for
claiming the protection thereunder, the licencee must prove that
:
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(1) he was in occupation of the premises on 1 February
1973;
(2) the premises or part thereof was not less than a room;
(3) he was in occupation of the premises as a licencee,
and;
(4) the licence was subsisting.
49. Thus, in order to avail the benefit of Section 15A, the
occupant must be in occupation of the premises as a licencee as
defined in Section 5(4A), on 1 February 1973. If he be such a
licencee, the non-obstante clause under Section 15A(1) gave him
the status and protection of a tenant, notwithstanding anything
to the contrary in any other law, or the contract between the
parties. However, if he is not a licencee under the subsisting
agreement on 1 February 1973, then he does not get the benefit
of the protection under Section 15A of the Bombay Rent Act.
(M/s. A.V.R. and Co. and Ors. V/s. Fairfield Co-operative
Housing Soc. Ltd. and Ors.15).
50. Whether the licence was subsisting as of 1 February 1973,
is the moot question. Mr. Palekar urged with tenacity that the
licence had, by all means, expired by efflux of time on 31
October 1972. Since the Plaintiff was purportedly in the
15 AIR 1989 SC 81
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occupation of the suit premises after the expiry of the licence by
efflux of time, by no stretch of imagination, could it be said that
the licence subsisted as of 1 February 1973. The convulated
manner in which the Appellate Bench arrived at a finding that
there was an implied renewal of the licence has been strongly
disapproved by the Supreme Court in the case of D. H. Maniar
and Ors (supra), submitted Mr. Palkar. A strong reliance was
placed on the following observations in paragraphs 10 and 11 of
the said judgment :
"10. It is thus clear beyond doubt that in order
to get the advantage of Section 15A of the Bombay
Kent Act, the occupant must be in occupation of
the premises as a licensee as defined in Section
5(4A) on February 1, 1973. If he be such a
licensee, the non-obstante clause of Section
15A(7) gives him the status and protection of a
tenant inspite of there being anything to the
contrary in any other law or in any contract. In
other words, even as against the express terms of
the subsisting contract of licence the licensee
would enjoy the benefits of Section 15A. But if lie
is not a licensee under a subsisting agreement on
February 1, 1973, then he does not get the
advantage of the amended provision of the
Bombay Rent Act. A person continuing in
possession of the premises after termination,
withdrawal or revocation of the licence continues
to occupy it as a trespasser or as a person who
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has no semblance of any right to continue in
occupation of the premises. Such a person by no
stretch of imagination can be called a licensee. If,
therefore, the respondent was not a licensee
under a subsisting agreement in occupation of
the premises on February 1, 1973 he could not
take shelter under Section 15A of the Bombay
Rent Act. The trial Judge -found against him.
Apart from the position that this was essentially a
question of fact and a finding on which could not
be interfered with by the High Court in exercise of
its revisianal power under Section 115 of the Code
of Civil Procedure, the High Court has done so, as
we shall point out, by committing such gross
errors of law and fact that we were constrained in
the beginning of our judgment, though very
reluctantly, to make some strong observations
against the judgment of the High Court.
11. While reciting the facts of the case the learned
Judge of the High Court states a fact in
paragraph three of the judgment that the
respondent was ordered to deposit in Court Rs.
29 per month which he did. We are happy to note
that the learned Judge has rightly not rested his
judgment on this ground of deposit of rent by the
respondent. There was nothing to show in the
records of this case that the appellants had ever
accepted any money either in or outside Court
from the respondent after March 31, 1966 by way
of any rent of the licenced premises. A person
continuing in occupation of such premises after
revocation of the licence is still liable to pay
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compensation or damages for their use and
occupation. If at any time such compensation had
been paid or accepted it could not undo the effect
of the revocation of the licence."
(emphasis supplied)
51. Per contra, Mr. Walavalkar would urge that the facts of the
case at hand, are materially distinct. In the Agreement dated 29
January 1972, there was a renewal clause and the parties had,
in fact, by mutual consent, renewed the licence. Special
emphasis was laid on the acceptance of the licence fee even after
the alleged expiry of the term of the licence to bolster up the
case that, by his conduct, the Defendant had renewed the
licence. Reliance was placed on the receipts dated 5 August
1973, 5 Februry 1974 and 5 May 1974 (Exh. F Colly.) which
evidenced the acceptance of the amount, albeit as a royality. In
addition, in a communication dated 30 June 1978 (Exh.H Colly),
the Defendant conceded that the royalty charges were paid till
the month of May 1975, and, thus a demand for the arrears of
the royalty charges was made from 1 June 1975.
52. Such conduct of acceptance of licence fee, disguised as
royalty even after the expiry of the term of the licence, according
to Mr. Walavalkar, indicates that the parties by mutual consent,
renewed the licence.
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53. The submission appears well founded. On the one hand,
there is material to show that the Defendant accepted the
royalty till the month of May 1975. On the other hand, the
Defendant did not take any action to terminate the jural
relationship between the Plaintiff and Defendant till the year
1977.
54. If the aforesaid factor is considered in juxtaposition with
the evidence which throws light on the nature of the jural
relationship between the parties even prior to the execution of
the agreement dated 29 January 1972, an inference becomes
inescapable that for over three years after the expiry of the term
under the said agreement, the Defendant accepted the royalty
without any demur. Thus, the decision of the Supreme Court in
the case of D. H. Maniar and Ors (supra), does not govern the
facts of the case at hand, as in that case, there was an express
termination of the licence and there was no material to show
that the landlord therein had ever accepted money by way of
rent or licence fee after the termination of the licence.
55. Reliance placed by Mr. Walavalkar on a judgment of the
learned Single Judge of this Court in the case of N. N. Dogra
through Legal Heir Ajay N. Dogra (supra), wherein in a some-
what similar fact situation, this Court held that the licence was
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subsisting as of 1 February 1973, as the occupation of the
occupant therein was with the permission of the owner, appears
well founded.
56. For the foregoing reasons, I am impelled to hold that the
Appellate Bench committed no error in passing the impugned
decree. In exercise of the supervisory jurisdiction, this Court
does not find any infirmity in the impugned judgment and
decree. The Writ Petition, therefore, deserves to be dismissed.
57. Hence, the following order.
:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
(iii) The parties shall bear their respective costs.
[N. J. JAMADAR, J.]
