Bombay High Court
Shri Raghuvir Prasad Kalicharan ... vs Hridainarain Ramlakhan Pande on 12 June, 2020
Equivalent citations: AIRONLINE 2020 BOM 657
Author: A.S. Gadkari
Bench: A. S. Gadkari
ssm 1 wp1654. & 1655.2000.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1654 OF 2000
WITH
WRIT PETITION NO. 1655 OF 2000
Shri Raghuvir Prasad Kalicharan Kaithwar,
(Since deceased, through His LRs.)
1a) Kamala Raghuvir Kaithwas
of Bombay, carrying on Business
at Plot No. 18, Radha Kunj Road,
Opp. Bharat Glass Factory,
Mahul Road, Chembur, Bombay-400069.
1b) Mr. Ajay Raghuvir Kaithwas
Vishvashakti Building, Room No. 12,
Peston Sagar, Road No. 4,
Mumbai-400089.
1c) Vijay Raghuvir Kaithwas,
Peston Sagar, Road No. 4,
Next to Rekha Mumbai.
1d) Smt. Archana Dinesh Ujgare,
Room No. 1 Ground Floor, Nikita Niwas-2,
Plot No. 176, Behind Chintamani
Complex, Sector No. 20, Belapur Gaon,
Navi Mumbai-400614. ....Petitioners.
Vs.
Hridainarain Rampakhan Pande,
Residing at Radha Kunj Road,
Opp. Bharat Glass Factory,
Chembur, Bombay-400 069. ....Respondent.
Mr. Pradeep J. Thorat a/w Ms. Aditi Naikare i/by Smt. Anupama B. Shah for
the Petitioners.
Mr. C.G. Gavnekar a/w Mr. Hiranandani for the Respondent.
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ssm 2 wp1654. & 1655.2000.doc
CORAM : A. S. GADKARI, J.
RESERVED ON : 2ND MARCH, 2020
PRONOUNCED ON : 12TH JUNE, 2020.
JUDGMENT:-
The Petitioner has taken exception to the common Judgment and Order dated 20th November, 1999 passed in Appeal No. 427 of 1996 in L.E. Suit No.251/579 of 1976 and Appeal No.480 of 1995 in R.A.D. Suit No.6041 of 1979, by the Appellate Bench of the Court of Small Causes, Mumbai, by present Petitions filed under Article 227 of the Constitution of India.
2 Heard Mr. P.J. Thorat, learned counsel for the Petitioners and Mr. C.G. Gavnekar, learned counsel for the Respondent. Perused the entire record.
3 The facts giving rise for filing present Petitions can briefly be stated as under:-
(i) The Respondent is the Owner/Landlord of the 'Suit property' i.e. a shed admeasuring 7 x 17 feet having roof of asphalt sheets and tinned walls named and styled as 'Shri Prakash Furniture', situated at Plot No.18, Radha Kunj Road, Opposite Bharat Glass Factory, Ghatkopar-Mahul Road, Chembur, Mumbai-400 069.
(ii) It is the case of the Respondent that, he is the owner of the Suit property. That, by an agreement dated 1st December, 1975 he gave the said 2/21 ssm 3 wp1654. & 1655.2000.doc Suit property to the Petitioner with articles, fitting etc. for conducting business for a period of 11 months as per the terms mentioned therein. That, the Petitioner agreed to pay Rs.110/- as monthly compensation or royalty and Rs.1500/- as security deposit, being conductor of the said business. The Petitioner failed to pay the monthly royalty or compensation from 1 st February 1976 inspite of demand. The Respondent therefore, issued a notice dated 17th August, 1976 and revoked and terminated the leave and licence granted to the Petitioner. The Petitioner, through his Advocate gave reply dated 30th August, 1976. The Petitioner in his reply contended that, no business was given for conducting with articles and fittings and the suit premises was in fact given on tenancy basis. The agreement of conducting business dated 1st December, 1975 was a colourable document, not intended to be acted upon. The Respondent addressed a rejoinder dated 29 th September, 1976 to the said reply. The Respondent without prejudice also contended that, the agreement dated 1st December, 1975 was otherwise also expired by efflux of time on 31st October, 1976 and therefore, the Petitioner was suppose to vacate the premises.
It is also the case of the Respondent that, though the suit premises was given for conducting business of manufacturing furniture as per the terms of agreement dated 1st December, 1975, the Petitioner had started using the same for his residence and therefore, the Petitioner was causing great loss and hardship to the Respondent. That, inspite of termination of the said agreement by notice dated 17th August, 1976, the 3/21 ssm 4 wp1654. & 1655.2000.doc Petitioner did not hand over possession of the suit premises which the Respondent was entitled to get back for breach of terms of agreement. It was the contention of the Respondent that, even otherwise, the said agreement had also expired by efflux of time and therefore, the Respondent was entitled to seek ejectment of the Petitioner from the suit premises. The Respondent therefore, filed L.E. Suit No.251/579 of 1976 on 21 st December, 1976 under Section 41 of the Presidency Small Cause Courts Act, 1882 (for short, 'PSCC Act'), as amended till the date of filing of the Suit for eviction and decree against the Petitioner, to quit, vacate and to hand over peaceful possession of the Suit property.
(iii) After receipt of summons, the Petitioner filed his Points of Defence, on 6th June, 1977. It was the defence of the Petitioner that, the suit premises was given by the Respondent to the Petitioner on tenancy basis at the monthly rent of Rs.110/- without any articles or things therein and the Petitioner was put in possession of the said suit premises thereof. That, the said agreement dated 1st December, 1975 of conducting business on licence was colourable and sham agreement and the terms and conditions of the said agreement were not to be acted upon, save and except the payment of rent of Rs.110/- which was stated to be compensation or royalty. That, the Petitioner being tenant and in occupation of the suit premises, requested the Trial Court to fix the standard rent. That, there was no furniture business in the suit premises at the time it was let out to the Petitioner and the suit premises is being used for residence with the permission and knowledge of 4/21 ssm 5 wp1654. & 1655.2000.doc the Respondent from very inception. The Petitioner denied that, he had caused any loss or hardship as alleged by the Respondent. The Petitioner, therefore, prayed to the Trial Court that, the Suit filed by the Respondent may be dismissed with costs.
(iv) The Petitioner thereafter filed R.A.D. Suit No.6041 of 1979 on 26th November, 1979 for declaration that, the Petitioner is a tenant in respect of the suit premises and for fixation of standard rent at the rate of Rs.45/- per month. It is the case of the Petitioner that, he was residing and also carrying out business in the suit premises. That, the Respondent being the owner and landlord of the suit premises, wanted to let out the suit premises on tenancy basis at the rate of Rs.110/- per month. The Petitioner contacted the Respondent through a common friend and the Respondent agreed to let out the suit premises on tenancy basis to the Petitioner. The Respondent suggested the Petitioner that, the Petitioner will have to sign an agreement for conducting business in order to circumvent the provisions of the Bombay Rent Act and also the provisions of the Land Acquisition Act. That, the Respondent had agreed, not to act upon the said agreement labeled as 'agreement for conducting business' as long as the Petitioner paid rent mentioned therein. The Petitioner was in dire need of premises for residence-cum-business and therefore, he agreed to the suggestion of the Respondent for signing the agreement, which was wrongly labeled and described as an agreement of conducting business. The Petitioner signed the agreement of conducting business on 1st December, 1975. It is contended by 5/21 ssm 6 wp1654. & 1655.2000.doc the Petitioner that, the said agreement was a sham and colourable agreement and it was not to be acted upon, except the payment of Rs.110/- per month, as the Respondent wanted to avoid the provisions of Rent Act. The Petitioner claimed that, the said premises was given to him on rental basis and he was and is a tenant of the Respondent in respect of the suit premises. The Petitioner was a protected tenant under the provisions of Bombay Rent Act. The Petitioner therefore, filed the said Suit for declaration as stated hereinabove.
(v) As per the record and observations made by the Trial Court, the Respondent herein filed written statement in the said Suit on 8th January, 1981. The main contentions in the written statement of the Respondent are the same as per his pleadings in his plaint i.e. in L.E. Suit No.251/579 of 1976, which are narrated hereinabove. With the said averments, the Respondent prayed for dismissal of the said Suit.
(vi) On the basis of pleadings of the parties herein in both the Suits, the Trial Court framed issues in L.E. Suit No. 251/579 of 1976 on 19 th August, 1988 and in R.A.D. Suit No.6041 of 1979 on 17 th June, 1991. That, the Advocate appearing for the respective parties submitted before the Trial Court that, common evidence be recorded in both the Suits and accordingly, the Trial Court recorded common evidence in both the Suits.
(vii) The Trial Court after recording evidence and after hearing the parties to the said Suits, by its Judgment and Order dated 14th July, 1995 dismissed L.E. Suit No. 251/579 of 1976 filed by the Respondent. The Trial 6/21 ssm 7 wp1654. & 1655.2000.doc Court decreed R.A.D. Suit No.6041 of 1979, filed by the Petitioner and declared that, the Petitioner Raghuvir Prasad K. Kaithwar was the monthly tenant in respect of the suit premises. The Trial Court has held that, the Respondent has failed to prove that, he gave the suit premises to the Petitioner for a period of 11 months under an agreement dated 1 st December, 1975 for monthly compensation. That, the Petitioner has proved that, he was a monthly tenant in respect of the suit premises. The Petitioner has further proved that, the agreement dated 1st December, 1975 is a sham and colourable agreement.
(viii) Feeling aggrieved by the Judgment and Decree dated 14 th July, 1995 passed by the Trial Court, the Respondent preferred Appeal No.427 of 1996 in L.E. Suit No.251/579 of 1976 and Appeal No.480 of 1995 in R.A.D. Suit No.6041 of 1979, before the Appellate Bench of the Court of Small Causes at Mumbai. The Appellate Court, by its impugned Judgment and Order dated 20th November, 1999 has allowed both the Appeals and decreed L.E. Suit No.251/579 of 1976 in favour of the Respondent and held that, the Respondent is entitled to recover possession of the suit premises from the Petitioner. The Appellate Court further directed the Petitioner to hand over vacant and peaceful possession of the suit premises to the Respondent within stipulated period as mentioned therein. By the impugned Judgment and Order, the Appellate Court has dismissed R.A.D. Suit No. 6041 of 1979 filed by the Petitioner.
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ssm 8 wp1654. & 1655.2000.doc 4 Mr. Thorat, learned counsel for the Petitioners submitted that, the agreement dated 1st December, 1975 between the Petitioner and the Respondent was an agreement of conducting business and therefore, Suit under Section 41 of the PSCC Act for eviction of Petitioners is not maintainable before the Court of Small Causes. In support of his contention, he relied on three decisions of this Court, viz. (i) Mohammed Hisiat Vs. Ebrahim Hasan in Civil Revision Application No.132 of 1981 dated 6th August, 1982, (ii) Radhabai w/o. Balkrishna Gangaram Chavan & Ors. Vs. Smt. Parvati Mahadeo Pawar & Ors., WP No.5220 of 1986, dated 8th January, 1988, and (iii) Smt. Anusuyabai Narayanrao Ghate Vs. Smt. Maktumbi S. Nadaf reported in 1999 0 Supreme (Mah) 120 : 199 2 BomCR 374 : 1999 1 MhLJ 836. He further submitted that, this Court may infer and interprete the said agreement dated 1st December, 1975 as an 'Agreement for Tenancy' created in favour of the Petitioner. He submitted that, the said agreement was in fact an agreement for tenancy, executed ostensibly under the guise of 'Conducting Agreement' or 'Licence Agreement'. By relying on a decision of the Supreme Court, in the case of C.M. Beena & Anr. Vs. P.N. Ramchandra Rao, reported in (2004) 3 SCC 595, he submitted that, there are distinguishing features in a 'Conducting Agreement' and 'Licence Agreement'. That, user of nomenclature relating to either terms by itself is not decisive. He also relied on a decision of the Hon'ble, Supreme Court in the case of Dnyandeo Sabaji Naik & Anr. Vs. Pradnya Prakash Khadekar & Ors., reported in (2017) 5 SCC 496, in that behalf.
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ssm 9 wp1654. & 1655.2000.doc Mr. Thorat, further submitted that, the Respondent has given an admission in his evidence and on his own admission, the said agreement dated 1st December, 1975 is a 'Tenancy Agreement' and not a 'Conducting Agreement'. Therefore, Section 41 of the PSCC Act will not have application while instituting a Suit by the Respondent in the Court of Small Causes. Mr. Thorat, also drew my attention to the cross-examination of the Respondent, wherein according to him, the Respondent has given certain admissions.
He further submitted that, the Petitioner has also raised a plea that, he took the premises for residence and the said fact can clearly be discerned from the reply given by the Petitioner to the first notice issued by the Respondent. In rejoinder to the arguments advanced by Mr. Gavnekar, the learned counsel for the Respondent, Mr. Thorat by placing reliance on a decision of the Supreme Court in the case of Baldev Singh & Ors. Vs. Manohar Singh & Anr., reported in 2006 (5) Mh.L.J. 634,submitted that, inconsistent pleas can be raised by the Defendant in the written statement, though the same may not be permissible in the case of plaint. He submitted that, therefore the plea taken by the Petitioner in his written statement contending that, the agreement in question was for conducting business and also claiming tenancy, is thus permissible.
Mr. Thorat, submitted that, the Appellate Court has committed grave error in not appreciating these aspects while allowing the Appeals. Upon a query raised by this Court, Mr. Thorat on instructions, submitted 9/21 ssm 10 wp1654. & 1655.2000.doc that, as of today the Petitioners are in possession of the suit premises and nobody else has been put in possession thereof. He therefore prayed that, the impugned Judgment and Order may be quashed and set aside by allowing the present Petitions.
5 Mr. Gavnekar, learned counsel appearing for the Respondent submitted that, the Petitioner has taken the only plea of 'tenancy' before the Trial Court, so also before the Appellate Court. He did not contest the Suit on the ground that, by the said agreement dated 1 st December, 1975, a licence for conducting business was never created in his favour and therefore, both the Courts below confined themselves to the issue of 'tenancy' only. He submitted that, the Trial Court has recorded a finding that, the said agreement dated 1st December, 1975 was a 'Conducting Agreement'. Mr. Gavnekar, without prejudice to his main plea and contentions submitted that, assuming for the sake of argument, the said agreement was a Conducting Agreement, then in that event, the Court of Small Causes would not have jurisdiction to entertain the Suit filed by the Petitioner for declaration of tenancy and the plaint of the Petitioner ought to have been returned for presentation before the Civil Court. In support of his contention, he relied on a decision of the learned Single Judge of this Court in the case of Kasturi Shetty & Ors. Vs. A.S. Bhandary, passed by this Court in Original Side Suit No. 3224 of 1984 dated 27 th January 2009. He further submitted that, plea of tenancy and conducting business are totally inconsistent and self destructing pleas to each other and cannot be pleaded 10/21 ssm 11 wp1654. & 1655.2000.doc simultaneously by the Petitioner. He submitted that, after termination of agreement by the Respondent by his notice dated 17 th August, 1976, the occupation of the Petitioner in the suit premises would be as a 'gratuitous licensee'. He submitted that, the pleadings of the Petitioner cannot be confined to Section 5(4A) of the Bombay Rent Act and in view of the amendment of 1976 to Section 41 of the PSCC Act, the Small Causes Court will have jurisdiction to try and entertain the Suit filed by the Respondent for eviction of Petitioner after the licence period is over and therefore, the Appellate Court is therefore right in entertaining the Appeal. He submitted that, by virtue of the said agreement dated 1 st December, 1975, what was ultimately given was only a 'licence' for conducting business to the Respondent by the Petitioner and it is not an agreement creating tenancy in favour of the Respondent. He submitted that, the Full Bench of this Court in the case of Prabhudas Damodar Kotecha & Anr. Vs. Smt. Manharbala Jeram Damodar & Ors., reported in 2007(5) Mh.L.J. 341, has interpreted the said relevant provisions and in unequivocal terms has held that, Suit by licensor against a gratuitous licensee is tenable before the Presidency Small Cause Court under Section 41 of the PSCC Act. He further submitted that, the said decision of the Full Bench of this Court has been confirmed by the Hon'ble the Supreme Court. He produced on record the decision of the Supreme Court in the case of Prabhudas Damodar Kotecha & Ors.Vs. Manharbala Jeram Damodar & Anr., reported in (2013) 15 SCC 358. 11/21
ssm 12 wp1654. & 1655.2000.doc Mr. Gavnekar, submitted that, in the present case, the period of licence expired on 30th October, 1976 and thereafter, the Petitioner filed Suit on 21st December, 1976. He further submitted that, the judgments namely
(i) Mohammed Hisiat (Supra), (ii) Radhabai w/o. Balkrishna Gangaram Chavan & Ors. (Supra), and (iii) Smt. Anusuyabai Narayanrao Ghate (Supra) relied upon by Mr. Thorat deals with a situation prior to the 1976 amendment to Section 41 of the PSCC Act and therefore, are not applicable to the present case in hand. While reiterating his contention, he submitted that, by the said agreement dated 1st December, 1975 a licence was granted in favour of the Petitioner for conducting business in the suit premises and therefore, suit under Section 41 of the PSCC Act is maintainable. Mr. Gavnekar further submitted that, there are no perverse findings pointed out by the learned counsel for the Petitioner from the impugned Judgment and Order and therefore, interference of this Court under Article 227 of the Constitution of India, with it is not necessary. He therefore prayed that, the present Petitions may be dismissed.
6 At the outset, it is to be noted here that, the Supreme Court in the case of Prabhudas Damodar Kotecha & Ors.(Supra) has in great detail, analysed the provisions of Section 5(4A) of the Bombay Rent Act, Section 52 of the Indian Easements Act and Section 41 of the PSCC Act. Paragraph Nos. 54, 57 and 59 of the said Judgment reads as under:-
"54. We have already indicated the expression "licence" as reflected in the definition of "licensee" under sub-section (4-A) 12/21 ssm 13 wp1654. & 1655.2000.doc of Section 5 of the Rent Act and Section 52 of the Easements Act are not pari materia. Under sub-section (4-A) of Section 5, there cannot be a licence unsupported by the material consideration whereas under Section 52 of the Easements Act payment of licence fee is not an essential requirement for subsistence of licence. We may indicate that the legislature in its wisdom has not defined the word "licensee" in the PSCC Act. The purpose is evidently to make it more wide so as to cover gratuitous licensee as well with an object to avoid multiplicity of proceedings in different courts causing unnecessary delay, waste of money and time etc. The object is to see that all suits and proceedings between a landlord and a tenant or a licensor and a licensee for recovery of possession of premises or for recovery of rent or licence fee irrespective of the value of the subject-matter should go to and be disposed of by Small Cause Court. The object behind bringing the licensor and the licensee within the purview of Section 41(1) by the 1976 Amendment was to curb any mischief of unscrupulous elements using dilatory tactics in prolonging the cases for recovery of possession instituted by the landlord/licensor and to defeat their right of approaching the court for quick relief and to avoid multiplicity of litigation with an issue of jurisdiction thereby lingering the disputes for years and years.
57. We are of the considered view that the High Court has correctly noticed that the clubbing of the expression "licensor and licensee" with "landlord and tenant" in Section 41(1) of the PSCC Act and clubbing of causes relating to recovery of licence fee is only with a view to bring all suits between the "landlord and tenant" and the "licensor and licensee" under one umbrella to avoid unnecessary delay, 13/21 ssm 14 wp1654. & 1655.2000.doc expenses and hardship. The act of the legislature was to bring all suits between "landlord and tenant" and "licensor and licensee" whether under the Rent Act or under the PSCC Act under one roof. We find it difficult to accept the proposition that the legislature after having conferred exclusive jurisdiction in one court in all the suits between licensee and licensor should have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. The various amendments made to Rent Act as well the Objects and Reasons of the Maharashtra Act 19 of 1976 would clearly indicate that the intention of the legislature was to avoid unnecessary delay, expense and hardship to the suitor or else they have to move from the one court to the other not only on the question of jurisdiction but also getting reliefs.
59. We have elaborately discussed the various legal principles and indicated that the expression 'licensee' in Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expression 'licensee' used in the PSCC Act does not derive its meaning from the expression 'licensee' as used in sub-section (4-A) of Section 5 of the Rent Act and that the expression "licensee" used in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well."
It is thus abundantly clear from the above that, a Suit for eviction of a 'licensee' so also, a 'gratuitous licensee' is maintainable under Section 41(1) of the PSCC Act before the Court of Small Cause. In view thereof, the contention of the learned counsel for the Petitioner in that behalf does not 14/21 ssm 15 wp1654. & 1655.2000.doc have any substance in it and cannot be accepted.
7 The moot question which arises for the consideration of this Court is, as to whether the agreement dated 1 st December, 1975 herein, is an agreement creating tenancy with respect to suit premises in favour of the Petitioner or an agreement of Leave and Licence permitting the Petitioner to conduct business in the Suit property.
8 It is the settled position of law that, while interpreting a document, the real intention of parties to be deciphered, from complete reading of document and the surrounding circumstances thereof. Nomenclature of the document is hardly conclusive and much importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered.
In view thereof, it is to be noted here that, a plain reading of the said agreement dated 1st December, 1975 clearly indicates the intention of parties herein in executing it and it is apparent that, by the said agreement a 'licence' was given by the Respondent to the Petitioner for conducting his business therein. Therefore, the submission of Mr. Thorat that, this Court may infer and interprete the said agreement dated 1st December, 1975 as an agreement for 'tenancy' created in favour of the Petitioner cannot be accepted and is accordingly rejected.
9 A minute perusal of record would clearly reveal that, the Respondent in his pleadings in the L.E. Suit has made categorical averments that, by a notice dated 17th August, 1976, he revoked and withdrew the Leave 15/21 ssm 16 wp1654. & 1655.2000.doc and Licence granted to the Petitioner to which the Petitioner sent a reply dated 30th August, 1976 through his Advocate. It is further pleaded that, the premises which is situated at Mumbai and the agreement for conducting business on 'Leave and Licence' was executed at Mumbai and therefore, the Trial Court had jurisdiction to entertain and try the said Suit. The Respondent has accordingly led evidence in support of his case and has made categorical statements in his examination-in-chief. He has stated that, as the Defendant did not pay him arrears of compensation in respect of the suit premises, in spite of receipt of notice, he revoked the 'licence' which was granted by him to the Petitioner. It is important to note here that, the categorical statement made by the Respondent in his substantive evidence has not at all been shaken by the Petitioner in the cross-examination of the Respondent. In fact, no cross-examination on the said positive and assertive statement or admission given by the Respondent is conducted by the Petitioner. The Respondent neither in his examination-in-chief nor in his cross-examination has admitted that, the suit premises was given to the Petitioner on rental basis. In fact the Respondent has stated that, it was given for compensation as per the advice of Advocate. It is further to be noted here that, the Petitioner in his examination-in-chief has admitted execution of the said agreement (Exh.'A'). It is important to note here that, the Petitioner has failed to produce on record and prove any document or receipt, even to remotely infer that, he was ever put in possession of suit premises as a 'tenant'. The Trial Court therefore, has committed a grave 16/21 ssm 17 wp1654. & 1655.2000.doc error in holding that, the Petitioner was a tenant of the Respondent. 10 The Trial Court has given undue importance to the licence (Exh.'3') issued by the Competent Authority in favour of the Petitioner, for conducting furniture business in the suit premises. It is to be noted here that, the suit premises was given to the Petitioner for conducting business only and therefore, having licence for conducting the said business in the name of the Petitioner is not an unusual circumstance for recording a finding that, the Petitioner was tenant in the suit premises.
The Respondent in his cross-examination has categorically stated that, except the suit premises, he does not possess any other shed. However, his father possessed another shed which was known as 'Prakash Garage'. His father was running a garage of taxi. There was also a Suit pending in respect of that shed of his father. It appears from the record that, the Trial Court has committed an error in not appreciating correct facts of the present case pertaining to the said aspect and has erroneously gave importance to the said statement.
11 As noted earlier, a plain reading of the agreement in question would clearly indicate that, it is not a simplicitor agreement for conducting business but, was a 'licence' given to the Petitioner by the Respondent to conduct business in the suit premises. Even otherwise, after termination of agreement by notice dated 17th August, 1976 by the Respondent, the status of the Petitioner was merely as of a 'gratuitous licensee' and none else. The ratio laid down by the Supreme Court in the case of Prabhudas Damodar 17/21 ssm 18 wp1654. & 1655.2000.doc Kotecha & Ors. (Supra), therefore, squarely applies to the present case and the Suit filed by the Respondent under Section 41 of the PSCC Act is maintainable before the Court of Small Causes.
12 Though the Petitioner has strenuously contended that, by virtue of the said agreement dated 1st December, 1975, tenancy was created in his favour, the agreement clearly indicates that, it was purely an agreement for conducting business in the suit premises given to the Petitioner by way of licence only and not for any other purpose. Not even a single word i.e.'tenant' has been used or mentioned in the said agreement. There is no mention of rent to be paid by the Petitioner to the Respondent in respect of the suit premises. In view thereof, the Trial Court has erred in not properly appreciating the evidence available on record.
13 Indubitably, the Petitioner has entered into the suit premises in pursuance of the said agreement dated 1st December, 1975 and not otherwise. As noted earlier, the Petitioner has failed to produce on record any document even to remotely infer that he was ever put in possession of the suit premises as a tenant. Therefore, the contention of the Petitioner that, he is a tenant in respect of the suit premises cannot be accepted and is accordingly rejected.
The Appellate Court has rightly appreciated all the necessary and relevant evidence available on record while reversing the findings recorded by the Trial Court.
14 The Constitution Bench of the Supreme Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan & Ors., reported in AIR 1964 SC 477, 18/21 ssm 19 wp1654. & 1655.2000.doc while enumerating the nature and limits of the jurisdiction of the High Court in issuing a writ of certiorari has held that, the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court. This limitation necessarily means that the findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. That, an error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.
In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.
A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding.
15 The Supreme Court in the case of Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has enumerated 19/21 ssm 20 wp1654. & 1655.2000.doc the principles in the exercise of High Court's jurisdiction under Article 227 of the Constitution of India. It is held that, the High Courts cannot, at the drop of a hat, in exercise of its power under Article 227 of the Constitution, interfere with the Orders of tribunals or courts interior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases, where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. That, the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
It is further held that, in exercise of its power of superintendence, the High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised. That, the power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
The afore-stated view expressed in the case of Shalini S. Shetty 20/21 ssm 21 wp1654. & 1655.2000.doc (Supra) has been further affirmed by the larger Bench of the Supreme Court in the case of Radhey Shyam & Anr. Vs. Chhabi Nath and Ors. Reported in (2015) 5 SCC 423.
16 After perusing the entire record, this Court is of the considered view that, there is no perversity in the findings recorded by the Appellate Court. The findings recorded by the Appellate Court are in conformity with the evidence available on record and the established principles of law. The Appellate Court has not committed any error either in law or on facts.
The Petitions being dehor of merits are accordingly dismissed. 17 The Petitioners are hereby directed to hand over vacant and peaceful possession of the suit premises to the Respondent within a period of three months from today, without seeking further extension in that behalf. Digitally signed by Sanjiv S. Mashalkar Sanjiv S. Date:
Mashalkar 2020.06.12 12:49:51 +0530 (A.S. GADKARI, J.) 21/21