Bombay High Court
Shri Paulo Godinho vs Shri Hari Jaivant Sinai Bhangui on 20 November, 1998
Equivalent citations: 2000(1)BOMCR440
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. KHANDEPARKAR, J.
1. This is an appeal against the judgment dated 21st March 1998 complaining that the courts below have wrongly construed the Agreement dated 1st May 1973 to be a licence when in fact upon application of legal principles it ought to have been construed as lease. It is further contended by the appellant that the legal effect of the agreement is to create a document of lease, notwithstanding its description as leave and licence and, therefore, the conclusions arrived at by the impugned judgments are based on misreading of the Agreement dated 1st May 1973 and by non-application of the correct principles of law. In support of these contentions Shri Mahesh S. Sonak, learned advocate appearing for the appellant sought to rely upon the judgment of the Apex Court in the matter of Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd., Bhusawal and another, , in the matter of Capt. B.V.D' Souza v. Antonio Fausto Fernandas, , as well as in the matter of Associated Hotels of India Ltd. v. K.N. Kapoor, and of the High Courts in the matter of Parmatma Prasad v. Mt Sampatti and others, and in the matter of Kidar Nath v. Swami Parshad and others, reported in A.I.R. 1978 Punjab and Haryana 204, of a Single Judge of our High Court in the matter of Balvantsingji Anand v. Bhagwantrao Ganpatrao Deshmukh, , and of the Kerala High Court in the matter of M/s. Permanand Gulabchand and Co. v. Mooligi Visanji, . As against this Shri Sudesh M. Usgaonkar, appearing for the respondent, has submitted that in the facts and circumstances of the case the proposed consideration of law does not arise at all particularly in view of the fact that the appellant had not based his defence on the document dated 1st May 1973 and the contention of the appellant was that the said agreement though styled as leave and licence was intended to be the lease agreement. In that regard the learned Advocate drew my attention to the pleadings of the plaintiff/respondent herein as well as those of the defendant/appellant and sought to rely upon the judgment of the Apex Court in the matter of Swarn Singh v. Madan Singh, .
2. Upon hearing the Advocates for the parties and on perusal of the records, it is seen that the agreement in question on the face of it discloses it to be a leave and licence agreement and it was a specific case of the appellant that though the said agreement was styled as leave and licence agreement, the same was intended to be a lease, the duration of which was at the option of the defendant and further that the said leave agreement was intended to continue for successive periods of 11 months at the option of the defendant and not for four periods of 11 months as alleged by the respondent. In fact, the relevant pleadings in that regard are to be found in paragraphs 6 and 8 of the written statement, which read as under :-
"6. For reasons stated in the preceding para, the contents of para 5 of the plaint are denied to the extent they are inconsistent with the case of defendant The defendant submits that though the said agreement is styled as leave and licence agreement, the same was intended as lease the duration of which was at the option of the defendant.
8. With reference to para 7 of the plaint, the defendant wish to clarify that the lease agreement was intended to continue for successive periods of eleven months at the option of the defendant and not for 4 periods of 11 months as falsely alleged."
Considering the facts and circumstances of the case, the same is fully covered by the judgments of the Apex Court in two cases, namely, one in the matter of Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd., Bhusawal and another (supra) relied upon by the appellant himself and the other in the matter of Swarn Singh v. Madan Singh (supra) wherein it has been held that the misconstruction of a document which is not merely of evidentiary value but one upon which the claim of a party is based would be an error of law and the High Court in second appeal would be entitled to correct it. As already seen above the case of the appellant was not that the lease was created in his favour by virtue of the agreement dated 1st May 1973 but the said document was sought to be relied upon in support of his case that he is the leaseholder in respect of the suit property and being so, it cannot be considered as a misconstruction of the document upon which the appellant had based his defence of leasehold right to the suit property and, therefore, the interpretation of a document which has been done by the trial Court on the basis of analysis of the entire materials on record cannot be considered as giving rise to any substantial question of law in relation to the interpretation of the document in question. Besides, it is the case of the appellant himself that the document was styled as leave and licence agreement but it was intended to be a lease agreement. In the background of such plea, it cannot be said that the interpretation of such document can be a misconstruction of the same. It has been clearly held by the Apex Court in Swam Singh v. Madan Singh (supra) that when the document is unambiguous, there is no need to travel beyond the document and look at attendant circumstances together with the intention of the parties. As regards the other judgments relied upon, the same are not at all attracted in the facts and circumstances of this case. Since no other substantial question of law arise for consideration, the appeal is dismissed.
3. Appeal dismissed.