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PETITIONER: SURENDRA KUMAR JAIN

       Vs.

RESPONDENT: ROYCE PEREIRA

DATE OF JUDGMENT:       19/11/1997

BENCH: S.B. MAJMUDAR, M. JAGANNADHA ROA.

ACT:

HEADNOTE:

JUDGMENT:                THE 19TH DAY OF NOVEMBER, 1997 Present:              Hon’ble Mr. Justice S.B. Majmudar              Hon’ble Mr. Justice M. Jagannadha Rao Mrs. Indra Jaising, Sr. Adv., Bharat Sangal, N.P. Midha, Advs. with her for the appellant V.A. Bobde,  Sr. Adv., S.D.Mudaliar, U.U. Lalit, Advs., with him for the Respondent                       J U D G M E N T      The following Judgment of the Court wad delivered: M. JAGANNADHA RAO. J.      Leave granted.      These  two  Civil  appeals  have  been  failed  by  the appellant against the judgment of the Bombay High Court in W.P. No. 5105 and 5106 of 1994.      The respondent  filed L.E. & C. Suit No. 86/116 of 1979 for possession  against the  appellant of one room adjoining the kitchen  on the  ground floor  of the  bungalow known as ’Carmel View’  situated at 63, Mount carmel Road, Bandra(W), Bombay and for arrears of paying quest charges of Rs. 2500/- till 31.12.1978 at Rs. 200/- per month and for mesne profits from  1.1.1979   till  vacant  possession  is  granted.  The appellant filed  R.A.D Suit  no. 2041  of 1979, Small Causes Court, Bombay  for a  declaration  that  he  was  tenant  in respect  of  the  Bathroom.  According  to  the  owner,  the appellant was  a paying  Guest’ from  February/march 1971 of Bed Room  No. 2  on an  occupation charge  of Rs.  120/- per month. In  December  1973,  the  appellant  was  married  at Allahabad and  before his wife joined him, executed a letter dated dated  31.1.1974 admitting  that he was a paying guest and  seeking  permission  to  bring  his  wife,  He  was  so permitted to  use  the  dining  hall  also.  The  occupation charges were  increased to Rs. 200/- per month. According to the appellant the respondent forcibly entered in the hall in October 1978.  The respondent  gave a notice dated 2.11.1978 revoking the  permission granted  to the appellant to occupy as paying  guest’. the  appellant sent a reply on 19.12.1978 and claimed  he was licensee and did not claim that he was a tenant. The  respondent sent  a rejoinder  on 19.12.1978 and claimed he  was licensee  and did  not claim  that he  was a

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tenant. The  respondent sent  a rejoinder  on  19.12.78.  Th Respondent filed  an eviction  case on  28.2.1979 as  stated above and  the appellant  filed the  other suit on 12.4.1979 for declaration that he was tenant.      The Trial Judge by judgment dated 27/28-6-1989 disposed of both  suits by  a common  judgment holding that appellant was not  a paying guest but was a tenant from the beginning. The appellant’s  suit was  decreed and the respondent’s suit was dismissed.  The appellate  Bench  of  the  Small  Causes Court, Bandra  however allowed both appeals preferred by the respondent, by  judgment dated 25.61994. The appellant filed two writ  petitions Nos. 5105 and 51.6 of 1994 and they were dismissed by  the High Court on 22.4.1997. These two appeals are filed by the appellant against the said judgments.      Learned senior counsel for the appellant contended that the appellant  was in  exclusive possession  of the bed room No.3 and  the dining  hall, bathroom and pantry as a tenant, that the letter dated 31.11974 wherein appellant admitted he was a  ’paying guest’  was obtained  by  the  respondent  by pressure, and  that  the  respondent  had  admitted  in  his evidence  that   in  1978-79  he  had  informed  the  Bombay Municipal Corporation,  in tax  assessment proceedings  that the appellant  was a tenant to whom part of the ground floor was ‘let’  at Rs.  200 (as  distinct from  one by  other  in ground floor  as  ’paying  guest’  at  Rs.  20/-)  and  this admission was not explained.      The appellate Court has found on a consideration of the letter dated 31.1.1974 and other evidence adduced by parties that the  appellant, to  start with  was a ’paying guest’ of bedroom No.3  even after  appellant’s wife  joined, that the appellant’s wife  was permitted  on compassionate grounds to cook in  the pantry,  that the  hall was  not given  to  the appellant when the charges were increased to Rs. 200/- P.M., and that the dining hall was in occupation or control of the respondent for  otherwise the respondent would not have been able to enter Bedroom No.2 on the leftside or the kitchen on the north,  beyond the  Bedroom No.3  that was being used by the appellant. (The plan shows that the front close verandah opens into  the dining  Hall, and on the left, there are Bed Room 1,2  and 3  one after the other and beyond Bedroom 3 is the kitchen  etc.). The finding is therefore that the dining hall and  kitchen etc.  and other  Bed rooms  1,2 which were vacated by  other paying  guests were  in the control of the respondent and  that the  respondent did  not dispossess the appellant from  the hall as alleged. So far as the statement of the  appellant that  he informed the Corporation that the portion  was  ’let’  to  appellant  was  concerned,  it  was observed by the first appellate Court that the appellant was not asked  in Cross-examination as to why he had so informed the Corporation  and that,  in any  event, the  letter dated 31.1.1974 executed  by  the  appellant  and  other  evidence showed that  the  real  relationship  of  the  appellant  in respect of the room was as ‘paying guest’.      These findings  arrived at  by the  appellate Court are findings of  fact and  were and liable to be interfered with by the  High Court  under Article 226 of the constitution of India. In fact, in Rusi Dinshawji Deboo vs. Cawasji Rustomji Patel &  Others [AIR 1987 SC 1771],  a letter in which there was an  admission that  the person  was occupying as ’paying guest’ was held binding on the parties under the Bombay Act, 1947.      So far  as the  contention of  the appellant  that  the respondent informed  the Corporation in tax proceedings that the appellant was paying rent of Rs. 200/- p.m. we may state that the  said statement  even if true stood rebutted by the

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appellant’s letter  dated  31.1.1974  admitting  he  was  in possession as  a ’paying  guest’ Apart  from that as pointed out  by   the  Privy   council  in   Venkatapathi  Raju  vs. Venkatanarasimha Raju [AIR 1936 PC 264 AT 268-269].      "It sometimes  happens that persons      make statements  which serve  their      purpose,  or proceed upon ignorance      of the true position; and it is not      their   statements,    but    their      relations with  the  estate,  which      should be  taken into consideration      in determining the issue"      The observations  were followed  and applied  by  Subba Rao, J.  (as he then was) in Rukhmadai vs. Lala Laxminarayan &: others [1960 (2) SCR 253]      The  Bombay   Rents,  Hotel  and  Lodging  House  Rates (Control) Act,  1947 (hereinafter  called the  Act)  defined ’landlord’ in section 5(3) licensee in section 5(4A), paying guest in  section 5(6A),  licensee in  section 5(4A), paying guest in  section 5(6A) , Premises in section 5(B)and tenant in section  5(II). Under section 15(A) persons in occupation on 1.2. 1973 as licensees becomes ’tenants’.      Section 5(6A)  defines ’paying  guest’  as  meaning  "a person not being a member of the family, who is given a part of the premises, in which the licensor resides, on licence."      Under section  5(B) ’premises’  means "(a) any land not being used  for agricultural  purposes, (b)  any building or part of  a building  1st  or  given  on  licence  separately ...................   but does  not include  a room or other accommodation in a hotel or lodging house."      Under section  5(4A) a  licensee, "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  ... but  does not  include a  paying guest, a member of  a family residing together........ "      It will  be noticed  that a  ’licensee’  under  section 5(4A) is  described as  a person who is in occupation of the premises or  such part,  under a  subsisting  agreement  for licence, given for a licence fee or charge. A ’paying guest’ is excluded  from t  he definition  of  licensee  and  under section 3(6A),  paying guest  is described as a person - not being a member of the family      "Who  is   given  a   part  of  the      premises  in   which  the  licensor      resides, on licence"      The words  ’in which  the licensor  resides’ which  are found in  the definition  of paying  guest’ in section 5(6A) are not  found in  the definition of licensee’ under section 5(4A) which  uses the  words ’who  is in  occupation of  the premises or such part’" and those words are not found in the definition of  paying guest’  in section  5(6A)  though  the words ’given  on licence’  are found  in the  definition  of paying guest.  If a  person is  a ’paying guest’ and thereby excluded from  the definition  of licensee then obviously he cannot become a tenant under section 15(A) for section 15(A) requires possession as a licensee on 1.2.1973.      The trial  Court, in  the present  case,  came  to  the conclusion that  in view  of the  language in  section 5(6A) defining ’paying  guest’ and the requirement of the licensor must ’reside’.  the owner  must establish  that he  was also residing in  the very  room in  which the  paying guest  was staying. This view. according to us, is not warranted by the words in  section 5(6A)  defining  ’paying  guest’.  In  our opinion, all  that is required to make a licensee answer the

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description of  a ’paying  guest’ is  that the licensor also resides’  in  the  premises  of  which  a  part  is  in  the possession of  the paying  guest and it is not required that the licensor  should physically  reside in  the same room as the paying  guest. The words ’ in which the licensor resides qualify the  words ’premises;’ which immediately precede the said words  and are  not intended  to qualify  ’part of  the premises’; as wrongly assumed by the trial Court.      It was  argued for the appellant that even if the words ’premises, in which the licensor resides’ would not mean the very room,  still the  licensor must  be using the remaining part of  the premises  for actual residence and that in this case,. the  remaining portion of the ground floor was not so occupied for  residence because  the owner was living in the first   floor.  In  our  views  this  contention  cannot  be accepted., If  the ground  floor and  first  floor  of  this building are to be treated as ’premises’ then the occupation of the  owner of  the  first  floor  for  ’residence’  would satisfy the  requirement of  section 5  (6a). Even  assuming that the ground floor of the building in which the appellant was residing  in a  ’ room is treated as the ’premises’, the finding of  the appellate  Court as  stated earlier  is that from the  front verandah on the ground floor, one enters the dining hall  and this  hall is retained by the owner, as per the finding  and it  is from  this hall  that the  owner can reach the  bedroom 1  and 2  on the ground floor on the left side or  the kitchen  which is  beyond bedroom.  3. Bed room No.3 is  in the possession of the paying guest and using the toilet. His  wife, was  on compassionate grounds, allowed to cook in  the pantry.  The appellate  Court positively  found that  the   hall  was   not  cart   of  the   paying   guest accommodation. it follows that the respondent has control of the remaining  accommodation on  the ground  floor and hence section 5  (6A) is  satisfied. It  is not necessary that the owner  must physically reside in the remaining accommodation on the ground floor.      The position  of a  ’paying guest’  is similar  to  the position of a ’lodger’ in England. If the part is in the use of the  ’lodger’  and owner retains the control of the whole house, that  is sufficient  (He) man vs. Horsham & Wsoreniya assessment Committee  [1948 (2)  All ER  588]. The fact that its control,  in fact,  was not exercised by the owner, does not prove  that he  had no  control, for  many rights  exist which nevertheless are not asserted until occasion arises to put them  into force  (Darling.J. In Kent Vs. Fitfall - 1911 (2) KB   1102 at 1110.) If the de jure control exists, there need not  be de  facto control.  Where the  owner  under  an agreement allowed  the  respondent  to  use  two  rooms  and kitchen, while  the owner  was also  residing  in  the  same premises. it  was held  to be a paying guest arrangement and not an  agreement of  tenancy (Clive  Everard R. William vs. Rajni Kripalani  1993 Bom.  R.C. 35).  Where a  licensee was occupying the  kitchen and  room but  the keys  were held in duplicate both by the licensee and the licensor who occupied the remaining  part of the first (i.e. the licensor retained control).  it  was  half  to  be  a  case  of  paying  guest arrangement (Mrs.  Dinoo F.  Bynamji vs. Mrs. Dolly J. Ramji 1988 (1)  Bom. R.C. 70,  1988 Mah, L.J. 1087). We are of the view therefore  that the  appellant was  using part  of  the premises on  licence and  the respondent was residing in the remaining part  of the  same premises  de jure in the ground floor and de facto in the first floor and whether the ground floor is  taken as  the ’premises’; or both floors are taken as the ’premises’, section 5(6A) is satisfied. The appellant was only a paying guest. if so, he was not a licensee and as

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he was  not a  ’licensee; as on 1.2.197., he cannot claim to be a deemed tenant.      For the  aforesaid reasons,  the appeals  fail and  are dismissed without  costs. in  the peculiar  circumstances of the case.  Time for  vacating the  premises is  granted upto 31st May,  1988 ......   on  the appellant’s   filing  usual undertaking within  four weeks  from today.  if  such  under taking is  not filed as aforesaid or if there is a breach of any of the terms of the undertaking, the order granting time shall stand recalled.