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PETITIONER: SMT. M.M. AMONKAR & OTHERS

       Vs.

RESPONDENT: DR.S.A.JOHARI

DATE OF JUDGMENT21/02/1984

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR  931            1984 SCR  (2) 646  1984 SCC  (2) 354        1984 SCALE  (1)381  CITATOR INFO :  R          1987 SC 117  (20)

ACT:      Constitution of  India, 1950,  Article  227  Scope  of- Justification of  interference with  a concurrent finding of fact recorded  by both  the lower  courts in  respect of the nature of occupation of premises by the lessee and in favour of the  lessor by  the High  Court-Whether the lessee of the cabin a  "protected licensee  under the Bombay Rent Act (No. 57 of 1947) as amended by the Maharashtra Act XVII of 1973.

HEADNOTE:      The   Respondent   original   plaintiff-a   doctor   by profession was  in occupation  of a small cabin (admeasuring approximately 175  sq ft) which is a part of the premises of Dr.  Amonkar  hospital  of  which  the  appellants  are  the proprietors. The  Life Insurance Corporation of India is the owner  of   the  building.  The  appellants  threatened  the Respondents to  evict him after issuing a notice dated March 20, 1973  informing the  Respondent that  his attachment  as Honorary Surgeon  was no longer required with effect from 1- 4-1973 and  that he should make his own arrangements for his private consultation.  The Respondent  filed a  suit in  the Small Causes  Court of  Bombay seeking a declaration that he was a  "protected licensee"  (having become a deemed tenant) of the  suit premises  under section  15A of the Bombay Rent Act (Act  57 of 1947) as amended by the Maharashtra Act XVII of  1973  and  for  injunction  restraining  the  appellant- defendants from  taking  forcible  possession  of  the  suit premises and  or disturbing  or interfering with his use and employment thereof  otherwise than in due course of law. The suit was  resisted  by  the  appellant-defendants  on  three grounds:  (a)   that  the  cabin  was  never  given  to  the respondent-defendant on leave and licence basis, that he was never in  exclusive use  and occupation thereof but the user of the  cabin was  given to him because of his attachment as Honorary Surgeon  to Dr.  Amonkar hospital  through the good offices of  one Dr. Rawalia and after obtaining a writing an stamp paper  reflecting the true nature and character of the arrangement  between   the  appellants  and  the  Respondent plaintiff;(b) that  the cabin in question was not "premises" within the meaning of Section 5(8)(b) of the Rent Act, in as

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much as  the same  could not  be said  to have been given on licence "separately"  because the  respondent plaintiff  was permitted the  user thereof  only  for  2-/2  hours  in  the evening on  week days  between 5  P.M. and 7.30 P.M. and for the rest of the time it was being used by the hospital staff and that one of the Key’s of that cabin always remained with the staff of the hospital and hence 647 disentitling to any protection of the Rent Act, and (c) that the cabin  in question  being  admittedly"  a  room  in  the hospital"  fell   within  the   exclusionary  part   of  the definition of the "licensee" given section 5(4A) and as such was outside the protection conferred on licensees by section 15A of the Rent Act.      The  appellants  also  filed  an  Ejection  Application against the  respondent plaintiff  seeking his eviction from the suit  premises under  section 41 of the Presidency Small Causes Courts  Act on the ground that the respondent’s right to occupy  the suit  cabin had come to an end along with the termination of  his attachment  as Honorary  Surgeon to  Dr. Amonkar hospital. The respondent plaintiff resisted the said suit. Both  the suits  were  therefore  heard  together  and common evidence recorded. On an appreciation of the oral and documentary evidence  and the surrounding circumstances, the trial court  came to  the conclusion  that the.  user of the suit cabin  had been  permitted to  the respondent-plaintiff not on leave and licence basis but because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital and that Ex. No. 1  which  was  signed  by  him  after  fully  realising  its implications, was  a genuine  writing  reflecting  the  true nature of the arrangement between the parties and so as such the respondent  plaintiff was not entitled to the protection of section 15A of the Rent Act and that with the termination of  his  attachment  as  Honorary  Surgeon  to  Dr.  Amonkar hospital his  right to occupy the suit cabin came to an end. The Trial Judge decreed the suit. In appeal preferred by the respondent-plaintiff,  the  Appellate  Bench  of  the  Small Causes Court on reappraisal of the entire material on record confirmed the  findings of  the  trial  court  both  on  the factual and  on legal  issued and  dismissed the appeal. The respondent-plaintiff when  approached the  High Court  under Article 227  of the  Constitution the  High Court interfered with the  concurrent findings of fact found by the two lower courts and  reversed the decisions both on the factual issue and the  two legal  issues. Hence the appeal after obtaining the special leave of the Court.      Allowing the appeals, the Court ^      HELD: 1.  The High Court was not right in reversing the concurrent finding of fact recorded by both the courts below and even  on merits,  the  High  Court  Judgment  cannot  be sustained. [663 C]      2.1. The  opinion of the High Court that there were two disturbing features  revealed in  the respective proceedings and judgments  of the  courts below which were suggestive or non-judicial approach,  some bias  and partiality (in favour of the  appellant defendants  and  against  the  respondent- plaintiff) on  their part  which  necessitated  a  full  and unrestricted exercise  of its  power of  superintendence  by going to  the extent of reappreciating the evidence in depth as if  it were a first Appellate Court was not rect. [653 F- G]      The comments of the High Court that the rejection of an application to  recall one of the witnesses viz. Dr. Rawalia and to direct him to produce his Income Tax

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648 Returns by  the trial  court on  18-10-1976 was a disturbing feature suggestive  of non-judicial  approach, some  bias or some partiality  shown by  the Trial  Judge, would  have had been simply  dismissed without  giving any  reason  but  the learned trial  Judge passed  a lengthy  order  giving  three reasons for the rejection of the application: (a) that vague averments were  made in the application about the receipt of the: information regarding Income Tax Returns of Dr. Rawalia on 8th  October, 1976 without the occasion for receiving the information or the source of information being indicated and that when  the Court made a query 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 respondent-plaintiff came in possession of the said information after  the cross-examination  of the witness was over and  after the  closure of  appellant-defendants’ case; (b) that under section 138(I)(b) of the Income Tax Act, 1961 the respondent-plaintiff could have and should have obtained the necessary  information or material from the Commissioner of Income-tax  by making  an application  in the  prescribed form and  since he had not done so it would not be proper to help him to get. the information through the court; in other words, if he had attempted and failed to get the information by following  the prescribed  procedure the court could have helped him;  and (c)  that the  Court’s power  to recall and examine any  witness at  any stage  of the  suit under Order XVIII Rule  17 of CPC on which strong reliance was placed by counsel for  the respondent-plaintiff was to be exercised in exceptional circumstances  and no  exceptional  circumstance had been  made out  by the  respondent-plaintiff inasmuch as these documents would have become available to him before he started the  witness’s  cross-examination.  May  be  in  the exercise its  discretion another  Court might  have taken  a different view  and allowed  the application. But unless the reasons given by the learned trial Judge could be said to be moon-shine,  flimsy  or  irrational  the  rejection  of  the application cannot  be dubbed  as suggestive of non-judicial approach or  bias or  partiality on  his part.  It  is  also possible that  the reasons for giving a ruling on a point or for rejecting an application may be wrong or disclose a non- judicious exercise  of discretion  and open to correction in appeal, but  non motive  of non-judicial approach or bias or partiality could  be attributed  unless the reason given are moon-shire or so flimsy or irrational that there are unreal. Considered dispassionately, such a thing could never be said about the reasons given by the trial Judge for rejecting the application. In  any case,  the rejection of the application could not  be regarded  as having  stemmed from  any oblique motive purpose. [656B-H, 657 A-C]      Further, the  so called disturbing feature noted by the High Court  in the  Judgment of the First Appellate Court is so innocuous and inconsequential that it could hardly afford any justification  to re-appreciate  the whole  evidence  as done by  it. on  the contrary,  the broad  features emerging from the  evidence on  record clearly support the appellant- defendants’ case that the user of the suit cabin was allowed to the  respondent-plaintiff not  on leave and licence basis but because  of his  attachment as  Honorary surgeon  to Dr. Amonkar hospital. [663. B-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 104-

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105 of 1981      Appeals by  Special leave  from the  Judgment and order dated 649 the 18th  August, 1980  of the  Bombay High  Court  in  Writ Petition Nos. 30 and 115 of 1979.      V.M. Tarkunde,  P.H. Parekh,  Mrs. Manik Karanjewal and Miss Indu Malhotra for the Appellants.      Anil Dewan,  Dalveer Bhandari  and R.S.  Yadav for  the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR, J.  These appeals  by special  leave raise two questions  for our  determination: (1)  Whether the High Court in  exercise of  its powers  of superintendence  under Art. 227  was justified  in interfering  with  a  concurrent finding of  fact recorded by both the lower Courts in favour of the  appellants? and  (2) Whether  the respondent  was  a protected licensee in respect of the suit premises under the Bombay  Rent  Act  (No.  57  of  1947)  as  amended  by  the Maharashtra Act XVII of 1973?      This unfortunate  litigation  between  eminent  medical practitioners of  Bombay has  been hotly contested before us since it  relates to  professional  accommodation  of  which there is  great dearth  in that  city. The  accommodation in question consists of a small cabin admeasuring 15’-6"x11’-2" (approximately 175  sq. ft)  which is a part of the premises of Dr.  Amonkar Hospital  located on  the  fourth  floor  of Bombay Mutual  Terrace at  534, Sandhurst Bridge, Bombay, of which  one   Dr.  M.D.  Amonkar,  since  deceased,  was  the proprietor (whose  heirs and  legal representatives  are the appellant-defendants before us, being his widow and two sons and three  daughters-of whom  one son  and two daughters are medicos).      Dr. Johari  (the respondent-plaintiff)  an M.B.B.S.  of Bombay, F.R.C.S.  of London  and Edinburough  and  Honourary Surgeon attached to G.T. Hospital and Bombay Hospital, filed a suit (R.A. Suit 650 No. 779/2893  of 1973)  in the  Small Causes Court at Bombay seeking   a   declaration   that   he   was   a   "protected licensee’.(having  become  a  deemed  tenant)  of  the  suit premises under  s. 15A  of the  Bombay Rent  Act (No.  57 of 1947) as amended by the Maharashtra Act XVII of 1973 and for injunction restraining  the appellant-defendants from taking forcible possession  of the  suit premises and or disturbing or interfering  with his use and enjoyment thereof otherwise than in  due course  of law.  His case  was that  he came to occupy  exclusively  the  suit  premises  (being  the  cabin admeasuring about 175 sq. ft. with the facility of using the adjacent common  waiting room  together with the facility of water and  electricity) on  Ist  May,  1970  on  leave.  and licence basis  under an oral agreement with late Dr. Amonkar on payment  of monthly compensation of Rs. 201 for doing his private consultation surgical practice. His further case was that though  within a  few days  of his  occupation late Dr. Amonkar had  obtained from him a writing purporting to state that he  was attached as an Honourary Surgeon to Dr. Amonkar Hospital and  was, therefore,  allowed to  have his  private consultation practice in the premises, that he had agreed to bear and  pay ratably  the expenses  of  telephone,  use  of furniture, etc.  and that  he was  neither a  tenant  nor  a licensee, the said writing had been obtained from him merely 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 acted  upon.

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According to  him, he  had cordial  relations with  late Dr. Amonkar 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 January 1973 but since threats of forcible dispossession  were  held  out  to  him  by  the  appellant- defendants, particularly  by appellant-defendant  No. 3  Dr. Suman Gaitondey  (the married  daughter of  the deceased) on her return  to Bombay  from Calcutta,  and since by a notice dated 20th  March, 1973  he was informed that his attachment as honorary  Surgeon was no longer required with effect from 1-4-1973 and  that he  should make  his own arrangements for his private  consultation, he  was forced  to file  the suit seeking reliefs  of a  declaration and  injunction mentioned above.      The suit  was resisted  by the  appellant-defendants on three grounds:  (a) that  the cabin  was never  given to the respondent-plaintiff on  leave and  licence basis as alleged by him,  that he  was never  in exclusive use and occupation thereof but the user of the cabin was given 651 to him because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital,  through  the  good  offices  of  one  Dr. Rawalia; that  the writing  on the  stamp paper  of Rs. 1.50 bearing  date  4th  May,  1970  signed  by  the  respondent- plaintiff reflected  the true  nature and  character of  the arrangement between  the parties; it was emphatically denied that the  said writing  was obtained by late Dr. Amonkar for the purpose  or motive suggested by the respondent-plaintiff or was  not intended to be acted upon, (b) that the cabin in question was  not "premises"  within the meaning of s. 5 (8) (b) of  the Act,  inasmuch as  the same could not be said to have  been   given  on   licence  ’separately’  because  the respondent-plaintiff was  permitted the  user there  of only for 2-1/2 hrs. in the evening on week days between 5.00 p.m. to 7.30  p.m. and for the rest of the time it was being used by the hospital staff and that one of the keys of that cabin always remained with the staff of the hospital and hence the plaintiff was  not entitled  to any  protection of  the Rent Act; and  (c) that the cabin in question being admittedly ’a room in  the hospital’  fell within the exclusionary part of the definition  of the  licensee’ given  in s. 5 (4A) and as such was outside the protection conferred on licensees by s. 15A of the Act.      It may  be stated  that while  the aforesaid  suit  was pending the  appellant-defendants on  their  part  filed  an eviction petition  being ejectment  Application No. 259/E of 1976 against  the plaintiff  respondent seeking his eviction from the  suit premises  under s. 41 of the Presidency Small Causes Courts  Act on  the ground that the plaintiff’s right to occupy  the suit  cabin had  come to an end alongwith the termination of  his attachment  as Honourary  Surgeon to Dr. Amonkar  Hospital   and  the  plaintiff  resisted  the  said eviction on  the ground  that he  was a  protected  licensee under the  Bombay Rent Act as amended by the Maharashtra Act XVII of  1973 and  was, therefore,  not liable to be evicted therefrom. The  two  proceedings  were  heard  together  and common evidence  was recorded  in the declaratory suit being R.A. No. 779/2893 of 1973.      It is clear that on the basis of the rival pleadings of the two  parties in  the two  proceedings before  the  Small Causes   Court    principally   three   issues   arose   for determination, namely,  (1) what  was the true nature of the arrangement between  the parties  regarding the  user of the suit cabin by the plaintiff, whether the plaintiff’s user of the cabin  was on  leave and  licence basis  on  payment  of

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monthly compensation or it 652 was on account of his attachment as Honourary Surgeon to Dr. Amonkar Hospital? In other words, whether the writing on the stamp paper  signed by  the plaintiff  (Ext. No.  1)  was  a genuine  document   reflecting  the   true  nature   of  the arrangement between  the parties? (2) whether the suit cabin was not  ’premises’ within the meaning of s. 5 (8)(b) of the Act? and  (3) whether  the suit  cabin was  a room  in   the hospital’  falling  within  the  exclusionary  part  of  the definition  of  ’licensee’  under  5  (4A)  and,  therefore, outside the protection contemplated by s. 15A of the Act? It is obvious  that the first issue raised purely a question of fact, the  determination whereof depended on appreciation of the evidence  led by  the parties before the Court while the other  two  issues  raised  questions  of  law-rather  mixed questions of law and fact.      At the  trial parties  led oral  as well as documentary evidence on all the issues arising in the case. The evidence on the  side of  the respondent-plaintiff  consisted only of his oral  testimony, during  the course of which he asserted that the user of the cabin had been given to him by late Dr. Amonkar on  leave and  licence basis  on payment  of monthly compensation. On  the side  of the  appellant-defendants the oral testimony consisted of depositions of two witnesses (i) Dr. D.M.  Amonkar (defendant No. 2) and (ii) Dr. Rawalia and the documentary  evidence consisted of two writings obtained by late  Dr. Amonkar-one  from the  respondent-plaintiff and the other  from Dr.  Rawalia. Ext.  No. 1  is a writing on a stamp paper  of Rs. 1.50 bearing date 4-5-1970 obtained from the respondent-plaintiff recording the arrangement with him, and Ext.  No. 2  is a writing on a stamp paper dt, 23-4-1962 signed by  Dr. Rawalia  recording the  arrangement with him. Both Exts.  No. 1  and No.  2 are  identical  in  terms  and appears that  long before  respondent-plaintiff was  allowed the use  of the suit cabin, Dr. Rawalia had been allowed the use of  another cabin  in the  hospital premises by late Dr. Amonkar on  the same  terms.  Each  writing  signed  by  the occupant in  terms states,  "I am  an Hon.  Surgeon  to  Dr. Amonkar Hospital.  I am  allowed to  practice  may,  private consultation in  the premises.  I am  neither  licensee  nor subtenant. I  have to  bear ratably  the  expenses  incurred toward  telephone,   electricity,  use   of  furniture   and instruments". Dr.  Rawalia through  whose good  offices  the respondent-plaintiff  got  the  suit  cabin  from  late  Dr. Amonkar fully  supported the appellant defendants’ case that late Dr. Amonkar had permitted the respondent-plain- 653 tiff to make use of the suit cabin because of his-attachment as  Honorary   Surgeon  to   Dr.  Amonkar  Hospital.  On  an appreciation of  the oral  and documentary  evidence and the surrounding circumstances,  the  trial  Court  came  to  the conclusion  that  the  user  of  the  suit  cabin  had  been permitted 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. 1 which was signed  by him  after fully  realising its implications, was a  genuine writing  reflecting the  true nature  of  the arrangement between  the parties  and as  such the plaintiff was not entitled to the protection of s. 15A of the Rent Act and with  the termination  of his  attachment  as  Honourary Surgeon to Dr. Amonkar Hospital his right to occupy the suit cabin came  to end.  The trial  Court also decided the legal issues in  appellant-defendants’ favour with the result that the respondent-plaintiff’s  declaratory suit  was  dismissed

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and the  ejectment application  of the  appellant-defendants was decreed. In appeal preferred by the respondent-plaintiff the Appellate  Bench of  the Small  Causes Court  on  a  re- appraisal of  the entire  material on  record confirmed  the findings of  the trial Court on the factual issue as also on the legal issues. The appeal was dismissed and the ejectment decree passed by the Trial Court in favour of the appellant- defendants was confirmed      Against the  dismissal of  his declaratory suit and the ejectment decree  passed in  E.A.  No.  259/F  of  1976  the respondent-plaintiff approached  the High  Court under  Art, 227 of  the  Constitution  by  preferring  two  proceedings- Special Civil  Application No.  30 of 1979 and Writ Petition No-115 of  1979 both  of which  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 disturbing features revealed  in the  respective proccedings/judgements of the  Courts below  which were  suggestive of non-judicial approach,  some  bias  and  partiality  (in  favour  of  the appellant-defendants and  against the  respondent-plaintiff) on their  part which  necessitated a  full and  unrestricted exercise of  its power  of superintendence  by going  to the extent of  re-appreciating the  evidence in  depth as  if it were a  first Appellate  Court; and after briefly indicating what it  felt were  the two  disturbing features,  the  High Court re-appreciated  the entire evidence fully and in depth and came  to the  conclusion that the user of the suit cabin was given  to the  respondent-plaintiff on leave and licence basis and  the writing Ext. No. 1 did not represent the real state of  affairs as far as the respondent-plaintiff’s right to use  the suit  cabin was  concerned and that the same had been taken by late Dr. Amonkar only 654 for his  protection against  his own  landlord, namely, Life Insurance Corporation.  The High  Court also  negatived  the findings recorded  by the  Courts below  on  the  two  legal issues and  held that  the suit  cabin was "premises" within the meaning of s. 5 (8) (b) of the Bombay Rent Act, the same having been given on licence ‘separately’ to the respondent- plaintiff and  that the  suit cabin  was not  ‘a room in the hospital’ and  as such the respondent-plaintiff could be and was a  ‘protected licensee’  entitled  to  claim  protection under s.  15A of the Act. The High Court’s interference with the concurrent  finding of  fact recorded  by the two Courts below on  the factual  issue also its conclusions on the two legal issues are assailed before us in the instant appeals.      The  first   contention  urged   by  counsel   for  the appellant-defendants is  that the  question whether the user of the  suit cabin  had  been  allowed  to  the  respondent- plaintiff on  leave and  licence basis  or  because  of  his attachment as  Honourary Surgeon to Dr. Amonkar Hospital and whether the  writing Ext.  No. 1  was a genuine document and reflected the  true nature  of the  arrangement between  the parties or  not was purely a question of fact depending upon the  evidence   led  by   the  parties  and  it  was  on  an appreciation of  the oral  and documentary  evidence and the surrounding circumstances  that both  the lower  Courts  had come  to  the  conclusion  that  the  respondent-plaintiff’s occupation of  the suit  cabin was  not on leave and licence basis but  on account  of his  attachment  as  an  Honourary Surgeon to  Dr. Amonkar  Hospital and  that the writing Ext. No. 1  was not any camouflage or facade obtained by late Dr. Amonkar  for   the  purpose  suggested  by  the  respondent- plaintiff but  was a  genuine document  which reflected  the real arrangement  between the  parties and such a concurrent

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finding of  fact, unless  it was  perverse, which it was not because there  was ample  evidence on  record to support it, could not  be interfered  with by  the High Court under Art. 227. Counsel  further urged  that the justification given by the High  Court for interfering with such concurrent finding of fact  was unsustainable  inasmuch as  the  so-called  two disturbing features  were not really any disturbing features much less  were they suggestive of any non-judicial approach or some  bias or  partiality on the part of the lower Courts in  favour  of  the  appellant-defendants  and  against  the respondent-plaintiff.  Council   strongly  urged   that  the suggestion  of  non-judicial  approach  or  of  bias  or  of partiality on  the part  of the learned single Judge and the two learned  Judges of  the Appellate  Bench of the Court of Small Causes  was unwarranted, uncalled for and ought not to have been made. Even on merits the High 655 Court’s view  on the  factual issue  was wrong.  It was also contended that  evidence clearly  showed that the suit cabin had not  been ‘separately’ given to the respondent-plaintiff and in  any case it was ‘a room in the hospital’ and as such the respondent-plaintiff  was  not  entitled  to  claim  any protection of  the Bombay  Rent  Act.  On  the  other  hand, counsel for  the  respondent-plaintiff  supported  the  High Court’s findings  on all the issues-and urged that there was no reason to disturb the judgment under appeal.      This  necessitates   a  close   scrutiny  of   the  two disturbing features-one  pertaining to the proceeding before the trial  Court and the other pertaining to the judgment of the Appellate  Bench-which according  to the High Court made it to  undertake a re-appreciation of the entire evidence in depth as  if it  were a  first appellate Court. In the trial Court after  examining their  two witnesses  the  appellant- defendants closed their case on 18th September, 1976 and the case was  fixed for  arguments on  4th of  October, 1976, on which day,  however, arguments  could not  be heard  and the matter was  adjourned. It  appears that  on 18th  September, 1976 during  the course  of  his  cross-examination  it  was suggested to  Dr. Rawalia  that in his Income-Tax Returns he had been showing payment of Rs. 225 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 12th of October, 1976 the respondent-plaintiff made an application stating that on 8th October,  1976, he had come to know that Dr. Rawalia had filed his  Income Tax  Returns showing  that he had paid Rs. 1870 as  rent for  1972-73, Rs. 2250 as rent for 1973-74 and Rs. 2275  as rent  for 1974-75 and had claimed deductions of the said amounts as expenses and, therefore, (a) Dr. Rawalia be recalled  for further  cross-examination and (b) that his Income Tax  Returns for the said three years be got produced through a  witness summons or letter of request being issued to the  Commissioner of  Income Tax.  Bombay. Obviously, the application was  made with a view to confront Dr. Rawalia by his own  Income Tax  Returns which  he had filed for proving (i) that  Dr. Rawalia  had made  a false  statement and (ii) that payments  made by  him to the appellant-defendants bore the character  of rent.  It  cannot  be  disputed  that  the aspects sought  to be proved by recalling Dr. Rawalia and by getting his Income Tax Returns produced were relevant to the issue involved in the case, though it is well-settled that a particular nomenclature given to payments made by a party is not conclusive  or decisive  of the  matter. The application was

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656 dismissed by  the learned  trial Judge  on 18th  of October, 1976 and  according to  the High Court this rejection of the application was  a disturbing  feature suggestive  of a non- judicial approach, some bias or some partiality in favour of the appellant-defendants  on the  part of  the learned trial Judge. In  our view  the comments  of the  High Court in the matter of  rejection of this application would have had some force if  the application  had been simply dismissed without 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  were  made  in  the application about  the receipt  of the information regarding Income Tax  Returns of  Dr. Rawalia  on  8th  October,  1976 without the  occasion for  receiving the  information or the source of  information being  indicated and  that  when  the Court made  a query  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 respondent-plaintiff  came in  possession  of  the  said information after  the cross-examination of witness was over and after  the closure  of appellant-defendants’  case;  (b) that under  s. 138  (1) (b)  of the Income Tax Act, 1961 the respondent-plaintiff could have and should have obtained the necessary information  or material  from the Commissioner of Income Tax  by making  an application in the prescribed form and since  he had not done so it would not be proper to help him to  get the  information through  the  Court;  in  other words, if he had attempted and failed to get the information by following  the prescribed  procedure the Court could have helped him;  and (c)  that the  Court’s power  to recall and examine any  witness at  any stage  of the  suit under Order XVIII Rule 17 of C.P.C., on which strong reliance was placed by Counsel  for the respondent-plaintiff was to be exercised in exceptional circumstances and no exceptional circumstance had been  made out  by the  respondent-plaintiff inasmuch as these documents would have become available to him before he started the  witness’s  cross-examination.  May  be  in  the exercise of  its discretion another Court might have taken a different view  and allowed  the application. But unless the reasons given by the learned trial Judge could be said to be moon-shine,  flimsy  or  irrational  the  rejection  of  the application cannot  be dubbed  as suggestive of non-judicial approach or  bias or  partiality on  his part.  It  is  also possible that  the reasons for giving a ruling on a point or for rejecting an application may be wrong or disclose a non- judicious exercise  of discretion  and open to correction in appeal, but  no motive of a non-judicial approach or bias or partiality could  be attributed  unless,  as  we  have  said above, the  reasons given  are moon  shine or  so flimsy  or irrational that they are unreal. Considered dispassionately, such a thing can never be said 657 about the reasons given by the trial Judge for rejecting the application. It  is true  that the  appellate Court  has not dealt with  this point  though in ground No. 27 of the Memo. of Appeal  a point  had been  taken that the application had been wrongly  rejected but  in all  probability it  was  not argued by  counsel otherwise  the appellate Court would have dealt with  it. In the High Court no assertion was made that the  point   was  actually  argued  or  pressed  before  the Appellate Bench  but it  was merely  urged that  although  a complaint against  the rejection of the application had been made in  Ground No.  27 of  the Memo of Appeal the appellate Court has  not dealt  with it.  This  also  shows  that  the

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rejection was  not regarded  by the  respondent-plaintiff or his counsel  before the  appellate Court  as any  serious or disturbing feature.  In any  case, as  stated  earlier,  the rejection of the application could not be regarded as having stemmed from  any oblique  motive or purpose. This so-called disturbing  feature;   therefore,   did   not   afford   any justification  to   the  High   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- called disturbing  feature noted  by the  High Court, is, in our view,  so innocuous  and inconsequential  that it  could hardly afford  any justification  to re-appreciate the whole evidence as  done by  it. It appears that during the hearing of the  appeal after supporting the trial Court’s finding on the factual  issue as  also the findings on the legal issues and  pressing   for  their   acceptance,  counsel   for  the appellant-defendants  put   forward  an   alternative   last submission that  even proceeding  on the  assumption that an oral licence  had  been  created  in  respondent-plaintiff’s favour by  late Dr. Amonkar, as alleged by him, the material on record  showed that  the said  licence did not subsist on the relevant  date, namely,  1-2-1973, mentioned  in s.  15A and, therefore,  he was not entitled to any protection under the Act,  and  in  that  behalf  an  averment  made  by  the respondent-plaintiff in  paragraph 4  of his complaint dated 24-3-1973 addressed  to the  Inspector  of  Police,  Gamdevi Police Station  was relied,  which averment runs thus: "Ever since there  has been  a publicity in the newspaper that the Govt. of  Maharashtra is  abolishing the  leave and  licence system (meaning  thereby that  the Government is thinking of converting occupants  under leave  and  licence  basis  into ‘deemed tenants’)  Dr. (Miss)  Usha  Amonkar  and  Dr.  D.M. Amonkar are  asking him  to vacate  the premises",  and  the contention was  that since the Bill amending the Bombay Rent Act (subsequently  numbered as  Act XVII  of 1973)  had been introduced or published in 658 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 introduced (not in  the Assembly)  in newspapers for information to the public  in   August  1972  and  held  that  the  respondent- plaintiff’s licence,  if any,  was not  subsisting on Ist of February, 1973 and he was not entitled to protection even if his case  were assumed  to be  true. According  to the  High Court such  a conclusion drawn by the appellate Bench was an impossible one  having  regard  to  the  pleadings  and  the evidence on record, for, according to the High Court, it was by notice  dated 20th  March, 1973,  issued by  the widow of late  Dr.   Amonkar  that   the   respondent-plaintiff   was categorically  told   that  he   should   make   alternative arrangement for  his consultation  practice  elsewhere  with effect from  1-4-1973 which  showed  that  his  licence  was terminated with  effect from  date. It must however be borne in mind  that what  was terminated  by the notice dated 20th March, 1973  was the respondent-plaintiff’s attachment as an Honourary Surgeon  to  Dr.  Amonkar  Hospital  and  not  his licence. In  fact, it  was never  the case of the appellant- defendants that the respondent-plaintiff was a licensee and, therefore, neither  their pleading nor their notice could be used for  showing that  the  respondent-plaintiff’s  licence continued upto 1st of April, 1973. The appellate Court while accepting the  alternative submission  was proceeding on the

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assumption that the respondent-plaintiff’s occupation was as a licensee and on that basis it considered what would be the effect of  the averment  made  by  him  in  para  4  of  his complaint which  suggested that  his oral  licence 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 record the same could at the highest be regarded as a  wrong conclusion  but it  is impossible to say that it was  suggestive  of  a  non-judicial  approach  or  bias  or partiality on  its part. Secondly, it amounted to acceptance of the  alternative contention on an assumed basis 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  agreement with  the trial  Court in  favour of the appellant-defendants. In  other words  the conclusion on the alternative  submission   was  not   merely  innocuous  i.e. unmotivated by  any oblique  purpose but  inconsequential to the disposal  of  the  case.  Having  regard  to  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  ought  not  to  have interfered with  the concurrent  finding of fact recorded by the two  Courts below  on the  factual issue  arising in the case. 659      Though  the  aforesaid  conclusion  of  ours  would  be sufficient to dispose of the appeals, even on merits we feel that the broad features emerging from the evidence on record make it  difficult to accept the respondent-plaintiff’s case that the  user of  the suit  cabin was  permitted to  him on leave and  licence basis  as claimed by him. Admittedly, Dr. Amonkar Hospital  was  never  exclusively  a  Maternity  and Gynecological Hospital  and had  a Nursing  Home  Department where  general   operations  were  undertaken  and  as  such attachment of  couple of doctors as Honourary Surgeons to it would be  most natural  and since  at the material time both the senior  Dr. Amonkar  (since deceased) and the junior Dr. Amonkar (defendant  No. 2)  were on  account  of  their  ill health, unable  to work  with full vigour, with only doctors (Dr. Miss  Usha Amonkar  and Dr.  Rawalia) in attendance the respondent-plaintiff’s attachment as Honourary Surgeon to it for temporary  duration till  Dr. (Mrs.)  Gaitonde  returned from Calcutta, could not be said to be unnecessary as opined by the High Court but was more probable. Even the High Court has  observed   that  late   Dr.  Amonkar  had  obliged  the respondent-plaintiff by  accommodating him in the suit cabin temporarily when  he was suddenly made to leave his premises on the  third floor  of  the  very  building  and  that  the respondent-plaintiff had  taken  advantage  of  the  gesture shown to  him by late Dr. Amonkar as Dr. (Mrs.) Gaitonde was away at Calcutta.      Secondly, even the High Court has accepted the position that the  user of  the suit  cabin became  available to  the respondent-plaintiff as  a result  of his direct approach to late Dr.  Amonkar but  through  the  intervention  and  good offices of  Dr. Rawalia,  and he  has  fully  supported  the Appellants-Defendants’ case  that such  user was  allowed to the respondent-plaintiff  on the  same terms on which he had been permitted  the user  of his  cabin  in  that  Hospital, namely, because  of attachment  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. Apart from some minor contradictions (which were really  omissions) that  appeared in  his  evidence  in

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light of the averments made by him 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 close  ties with  the Amonkar family  and that  he had  displayed an  attitude  of being ever  willing to  sign any  affidavit or  to swear  to anything to  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 am prepared to go as and when they will tell me to get out", which showed that 660 he had  identified himself  with Amonkars. In our view these aspects  would  not  be  good  reasons  for  discarding  his evidence. True,  some of  his answers  do show  that he  was having close  ties with  the Amonkar  family but this is not unnatural if  it is  borne in  mind that he has been working with them in that Hospital since 1954 and the mere fact that he has  stated that  he was prepared to go whenever Amonkars would ask  him to  go would  not show  that  there  was  any private or  secret-understanding between him and Amonkars as was sought  to be  suggested by  counsel for the respondent- plaintiff. Since  he was  a signatory  to writing Exh. No. 2 all that he wanted to convery was that his user of the cabin was because  of his  attachment as  Honourary Surgeon to Dr. Amonkar Hospital  and as  such his right to occupy the cabin would come to an end as and when his attachment would cease, that is  to say,  as and  when Amonkars would ask him to go. Far from  showing any  interestedness in  the  Amonkars  his aforesaid  statement   was  an  admission  against  his  own interest, as  it exposed  him to  imminent risk of eviction, and as  such deserved commendation. Honouring one’s word has become a  rare virtue  these days  and it would become rarer 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 sticking to the arrangement to which he was  a signatory  and for  not behaving  in the manner as respondent-plaintiff  has  done,  would  be  a  travesty  of justice.      Thirdly, turning  to the  documentary evidence, it must be observed  that the  three or four receipt produced by the respondent-plaintiff showing  monthly payments  made by  him would be  of no avail because the nature or the character of the payment,  whether it  was  by  way  of  compensation  or towards ratable expenses, has no where been indicated in any of them.  But so  far as Exh. No. 1 is concerned it is clear that this  document in  terms indicates that the respondent- plaintiff was  permitted to  use the suit cabin not on leave and licence basis but because of his attachment as Honourary Surgeon to  Dr. Amonkar  Hospital and  that  it  contains  a categorical admission  on his  part that  he was  neither  a tenant  nor   a  licensee   thereof.  In   cross-examination respondent-plaintiff  admitted   that  he  had  signed  this document after  fully understanding the contents thereof. If that be  so, his  oral testimony  which runs-counter  to the document cannot obviously be accepted unless, of course, the document is  shown to have been obtained by late Dr. Amonkar from him  for the  purpose of  avoiding a possible objection that might  be raised  by the L.I.C. and was not to be acted up.. ones  suggested by the respondent-plaintiff. As regards the motive or 661 purpose for  which  the  document  was  said  to  have  been obtained there  are two circumstances which militate against it. In  the first  place at the material time that is in May 1970 unlawful  subletting  of  premises  was  a  ground  for

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eviction and  not the  giving it  on leave and licence basis and late  Dr. Amonkar  might have faced some difficulty from his own  landlord, namely,  L.I.C. if he had sublet the said cabin to  the respondent-plaintiff but at that time it could not  be   within  the   contemplation  of  anybody  to  seek protection against giving premises on licence also, and even so Ext. No. 1 in terms records that respondent-plaintiff was neither a  tenant nor  a licensee  of the suit cabin. Such a double protection was unnecessary as against the L.I.C. but, it was necessary as against the respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of the cabin was allowed  only in  the capacity  of an attached Honourary Surgeon to  the Hospital  and in  no other  and that is what Ext. No.  1 says.  In our  view, the motive suggested by the respondent-plaintiff does  not fit  in with the situation or state of  affairs that existed in May, 1970 and the document really records  the true  transaction between  the  parties, namely, that  the respondent-plaintiff  was allowed the user of the  suit cabin  because of  his attachment  as  Honorary Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to  be acted  upon and  it  was  signed  by  respondent- plaintiff on  the representation  made to  him by  late  Dr. Amonkar that  it was  simply for  the purpose  of protecting himself against  the L.I.C.  and was  not to be used against the  respondent-plaintiff,  the  respondent-plaintiff  could have obtained  from later  Dr. Amonkar a writing that effect which he could have preserved for his own safety but no such writing was  obtained by  him from  late Dr. Amonkar and, in our view,  if the  respondent-plaintiff’s version  were true that  Ext.   No.  1   had  been   obtained  on  the  alleged representation two  writings could  have been  executed  and preserved by  each for his own safety but this was not done. If, therefore,  respondent-plaintiff’s suggestion  as to why Ext. No.  1 was obtained by late Dr. Amonkar from him is not believable-and for the reasons indicated above it is not-the respondent-plaintiff must  be held bound by the writing Ext. No. 1  which  he  executed  after  fully  understanding  the contents thereof and his oral testimony that the user of the cabin was  given to him on leave and licence basis cannot be accepted.      It may  be stated  that the  main reason  why the  High Court felt  that Ext.  No. 1 did not reflect the true nature of  the   transaction  between   the  parties  was  that  no documentary  evidence   was  produced   by  the   appellant- defendants to show that actually medical services were 662 rendered  by   the  respondent-plaintiff   to  Dr.   Amonkar Hospital. On  this point  there was  merely the  respondent- plaintiff’s word as against the testimony of defendant No. 2 and Dr.  Rawalia. Respondent-plaintiff  claimed that  he had not rendered  any services  to Dr.  Amonkar Hospital  as  an attached Honourary Surgeon thereto while both the witness on the  side   of  the   appellant-defendants   asserted   that consultations  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 in a  responsible and restrained manner-should not have been accepted on the point. Defendant No. 2 had clearly stated in his  evidence   that  consultations   with  the  respondent- plaintiff were  held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was consulted in his capacity as

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an Honorary  Surgeon attached  to the  Hospital. It  is true that  no   documentary  record  of  such  consultations  was produced but  whether any  record of  consultations would be maintained or  not would  depend upon the nature and type of consultations made  and it  is equally  possible that due to lapse of  time that  had occurred between such consultations and the  trial such  record may  not have been preserved. In our view  defendant No. 2’s evidence in this behalf need not have  been   rejected  simply  because  no  record  of  such consultations 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. Amonkar Hospital for performing operations on his private patients and though there is a controversy as to whether such  user of  the Operation  Theatre  was  free  of charge or  on payment,  in our  view such  user of Operation Theatre together  with the facilities attached thereto would not have  been permitted  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-plaintiff obtained  an  interim  injunction)  the respondent plaintiff  had no  servant of his own attached to the suit  cabin but  he was  getting the  services from  the members of  the Hospital  staff in  the matter  of sweeping, cleaning and dusting of his cabin, receiving his patients in the common waiting room and ushering them into his cabin for which no  separate payment was being made by him. Were he an independent licensee  of the  suit cabin and not attached to the Hospital such services 663 would not have been made available to him free of charge.      In our  view the aforesaid broad features emerging from the evidence  on  record  clearly  support  the  appellants- defendants’ case that the user of the suit cabin was allowed to the  respondent-plaintiff not  on leave and licence basis but because  of his  attachment as  Honourary Surgeon to Dr. Amonkar Hospital.  Such being  our conclusion on the factual issue it  is unnecessary  for us to deal with or discuss the other two  semi-legal issues  that were  argued before us in these appeals.  We are  clearly of  the view  that the  High Court was  not right  in reversing the concurrent finding of fact recorded  by both  the courts  below and even on merits the High Court judgment cannot be sustained. The appeals are therefore allowed  and the  High Court judgment is set aside and the  concurrent finding  of both the lower courts on the factual issue  is restored. The dismissal of the declaratory suit and  the findings in the Ejectment Application E.A. No. 259/E  of  1976  are  confirmed.  Parties  will  bear  their respective costs throughout. S.R.                                       Appeals allowed. 664