SMT. M.M. AMONKAR & OTHERS versus DR. S.A. JOHARI

. '

p. 649, margin C

TuLzAPURKAR, J. These appeals by special leave rai•e · tll'o questions for oilr determination: (I) Whether the High Court in exer-· oise .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 respon- _dent was a protected licensee in respect of the'suit pre111ises under· the Bombay Rent Act (Nd. 57 of 1947) as amended by the Maharashtra Act XVII of 1973?

p. 649, margin C

This unfor.tunate litigation between· eminent medical. practic ••. i_ .

p. 649, margin E

-lloners of Bombay has been hotly.contested before since it relates' · · to professional accollll11odation of which. there is great dearth in that city: The accommodation in question consists or a small cabin admeasurillg 15'-6" x 1-1'-2" (approximately 175 sq. ft.) which'is a-part of the. premises of Dr. Amonlcar Hospital located on the fourth floor of Boip.bay Mutual Terrace at 534, Sandhurst Bridge, Bombay, of whieh . · one Dr. M. D. Amonkar; since decea-sed, was the propri.etor (whose heirs and legal representatives are the appellant-defendauts before us, befog his widow and two soils and three daughters-of whom one. son and two daughters are medicos).

p. 649, margin E

Dr: J'ohari (the respondent-plaiatiff) an M.B.B.S. of Bombay, F.R.C.S. of London and Edinburough and' Hoi10urary Surgeon attached to G.t. Hospitai- and Bombay· Hospital, . filea a suit (R.A. ·Suit ,

p. 649, margin G

.... , • .. No. 779/2893 of 1973) ;n the Sn1al!' Causes. Court at Bombay s~~king a declaration that he was a "protected' licensee'· (having become a· deemed ·tenant)• of the .suit premises @der s. · 15A of the. Bombay Rent Act (No. 57 of 1947). as amended by the Maharashtra Aet xvn· of 1973 and for injunction restraining the appel\ant-defen· dants from taking forcible poSS\'SSion of the suit premises and or disturbing or interfering with his"usc and enjoyhient thereof otherwise than in due course of lalv. Bis case was that he came to · occupy exclusively the suit premises (being the cabiil admeasuring about '175 sq. ft. with . the 'facility of using the adjacent common waiting rooJll. together with the facility of water and electricity) on ISt May, 1970 on leave and licence bas!s under an· oral agreement ~ith late Dr.· All).onkat o~ payment of monthly com- .P~nsation ·of Rs .. 201 for doing his private consultation surgical· practice. ·ms further case was that though within a ·few days· of his occupation laie Dr. Amonkar had obtained from him a_ writing purporting to state that he was attached as an Honburary Surgeon · . to Dr; Amonkar Hospital. and was, therefore, allowed· to have his private cohsultation practice in the premises, that he had agreed to .bear and pay rateably the expenses.of telephone, us!:' of fw·niture, etc. and· that he was neither a tenant nor a licensee, the said writing had' . been obtained from Iiimmerely 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 a~te,d upon. 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 di'spossession were held out to him by the appeliant-defendants, particularly l5y, appeallant-cl.cfendant 'No. 3 Dr. Suman Gaitondey (the married. daughter of' the deceased) on her return to Bomb'ay from Calcutta, and since by. a notice dated .20th-March, I ~73 he was .informed ,.that his attachment as honourary ·Surgeon was no longer required with effect from 1-4-1973 and tha.t he should make hiS own arrangements for his pfivate consultation, he. was forced to file the suit seeking reliefs of a declaration: and injunction mentioned above. .. · · . · The suit' was resisted by . the appellant~efend,ants · on three grounds: (a) that the cabin was never given to' the ·respondent-plain· tiff on leave and licence basis as alleged by him; that he was never in exclusiv~ use and occ~patio~ therC<;if<but the user'o/the c:;bin was given

pp. 649–650, margin G

(Tu.fzapurkar, J.) 651

p. 651

' . to him because of his attachment . as .' Fionoui·ary .Surgeon to Dr. A,monkar Hospital, through the·good offices of one Dr. Rawalia'; that the writing on the stamp paper of Rs. J.50 bearing date 4th May, 1970 signed bJ' the respondent...!..plaihtiff reflected· the true ·nature and . character of the .arrangement.between the parties,;, it was emphatically· denied that the sai~. writing was obtained .by late br. Amo11kar, for the purpose ~r moti~~ suggested by the respondent-plaintiff or· was not intended to be acted upon, (b) that the cabi.nfo question was not "ptcmises" withi.n'the meaning of s. 5 (8) (b) of .the Act, inasmuch as the same> .could n-c.t be sa'd to have been given on J.icence. 'separately' because the respondent~plaintiff was permitted the user''thereof only' for '.r-1/2 hrs. in.the evening on week days het~e.en 5.00 p.'m. to 7.30' p.m.an~. for the .rest of the time .it was being used by the hospital · staff.and that·on~ of the· keys qf that cabin alyiays remained wi.th the ,

p. 651

staff of• the hospital and hence .the· plaintiff was not entitlrd to cny · . _protection of the .Rent Act;. and· (c). that the cabin in question.·being admittedly 'a room in the hospital' fell within \he 'e'xclusionary pert of the definition of the licensee' given in s. 5 (4A) and as such was outside the protection 'cm1ferred licensees by s. J5A of 'i'he Atl. ·

p. 651, margin C

·Jt may te stated th'at.while the aforesai<1. suii'was per.ct.iiig. the. ,appellant~dcf<11<1.ants on their 'part filed an .eviction petition being EjectmentApplicaticn No. 259/E of 1976 against the plaintiff-respond•nt· seeki1\g· his eviction from the• suit pre111ises uncl.er s 41 ·of ,the Presidency Small Causes Courts Act on the.ground that.the plaintiff's right. to eccupy the suit cal:!in had come to an .end alongwitli the termination of ~is ·attachment as Honourary Surgeon to Dr Amonkar Hospital and ·the· plaintiff resisted the said' evicticn en.the ground that he was a, protected Jicensee under the Bombay Rent Act as ani.end.ed by the Maharashtra Act XVII of 19(3 and was,' thereforto, not liable to be evi~tcd therefrom. The two proceedings were '.heard together and common evidence ·wiis recorded in the &c!aratory suit .being R.A:.

p. 651, margin C

~ - N0. 779/2893 of .1973. . " · . . . .

p. 651, margin F

It is clea.r that on .the 'be.sis of the rival pleadings of tl;e two .parties in.the two pr?ceedings before the Small·Causes Court princip:illy three isSl\es aros,e for .qetermination, namely, (1) v.:hat was the true . nature ofthearrange,ment.between the part;i~s regarding the user of the suit cabiti by t11e plaintiff, whether the plaintiff's ·user oftbe cabin was on Jeave and Jicente. l]asis on payment of mon.thly _compensatio~ or it was on account of his attachment as Hon~urary Surgeon to Dr . Amonkar Hospital? In other .words, w~ether•the writing on the .stamp paper signed by. the plaintiff (E.xt. N;o. 1)' was a, genuine do~ument reflecting the true nature of the arrangement between the parties? (2) whether the .suit cabin was not 'premises' within the meaning.of s. 5 (S)(b) of the Act? and (3) )Vhether the suit cabin was 'a room in in the hopital' falling within rl)e exclusionery part of the definition of 'licensee' under 5 ( 4A) and, therefore; outside the protectionc ontemplated by s. ISA of the Act? It is obvious thatthe first issue raised purely a question ill fact, the determi;iation whereof depended on appreciation of the evidence led by the parties before the Court while . the other two is~ues raised questions of Jaw:~rather mixed questions of "law and fact. ' • · · . · ~

pp. 651–652, margin F

At the trial parties Jed oral frs well as documentary evidence on all the is$ues arising in the case. TM evidence on the side or th~. fespondent-plaintiff consisted only of his oral testimony, during the course of•which he asserted that the user of the ~abin had been given to him by late Dr. Amonkar 'On leave and licence basis on payment of monthly colnpensation. On the side of the appellant-defendants ,the o)'.al testimony consisted of depositions of two witnesses (i) Dr. D.M. Amonkar (defendant No. 2) and (ii),,Dr. Rawalia and the.do.c\J.mentary :evidence consisted of two writings obtained by late Dr. Amonkar-'--one from the respondent-plaintiff and the· either from Dr. Rawalia. Ext. No." I is a writing 'on a stamp paper of Rs. 1.50. bearing date 4-5, 1970 obtained. from the respondenf-plaintiff recor-· ding 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 Bxts. No., I and'No. 2 are identical in terms and appears that Jong before respondent-plaintiff was allowc'c'. the use . of the suit cabin, Dr. Rawalia had been allowed the use of another cabin in the hospi!al pr~mises by late Dr. Amoi1kar on the sa1ne terll).s. Each writing signed· by.the occupant in terms .states: ''I am an Hen. 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 rateably the expenses incurred tcwan\s teleph.one,. electricity, use of furniture and instruments". Dr. Rawalia, through . .)¥hose good offioes the respondent--:-_plaintiff got the suit~· •cabin from late Dr. Amonkai; 'fully supported the appellant-defendants' case that late Dr. Amonkar had permitted the respondent-plain- :-l-- ..

pp. 652–653, margin C

AMO~AR v. (fohap;irkar, J.). 653 tiff to make use of the suit cabin because-of his attach'ment as Hano- . rary Surgeon to/ Dr. _Amonkar l;Iospjtal•. On an ~ppieciation of the. ofal and documentary evidence and the surrounding circm{1stances, the trial Cou~t came. tq_ th,e ·~onclusion that the user of the suit cabin' . had been ipermittcd 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. I which was signed by liim , after fullv .realising its .implications/ was a gem1ine writing reflecting

p. 653

_the true ~ature of the . arrangement between the parties and· as. such <~ the·plaintiff was not.entilted to the protec!ion of s. 15A of the Rent · 'Act and with the termination of his attachment as Hortourary ·Surgeon to Dr. Amonkir Hospital his right to coccup~ the' suit~ cabin came to . end, The trial Court also decided the legal issues in appellant~defen- . dants' favour with the result that the respo_ndent-plaintiff's detlara- . tory. suit was dismissed and. the ejectment application of the ·appel- · ·rant-defendants \vas decreed.·In appeal preferred by the respondent- . plaiii.tiff the Appeliate Bench of tJ;te Small Causes Court on a re-appraisal of the entire 'material .. on record confirmed the findings of. the triaJ.~ourt on the factual i~sue as also' on the. legal issues. The appeal was dismissed ·and the ejectment decree passed by· the Trial Court in favour ~f the appellant-defendants was confirmd.' ' ·

p. 653, margin B

.e . . ·~ai11St the dismissal of his declaratory suit ~nd the ejectmen! decree passed in E.A. N8. 2?9 /F of 1976. the respondent-plaintiff approacheti. the High Co~rt undei· Art. 227 of the Constitution by preferring two procee<J.ings ~Special Civil Application No. 30 o/,1979 a_nd Writ Petition No. 115 of .1979 bo_th of ~hich were disposed of

p. 653, margin C

by the High Court by common judgment rendered on 18th August,_ . · ·1980. The High Court was of. the· opinion 'that there were two distur" · bing features· revealed i1] the respective proceedings/judgrcent's of the . Courts below which were suggestive of non-judicial apprnach, some bias and partiality (in favour of the appellant....:..defendants and again.st . the respondent__:plaintiff) on their part which necessitated a full and linteS.tricted exercise of its pow.er. bf superintendence by going to the extent of re-appreciating the evidence in depth.as if it were a first'Appel- . late Court; anq. after briefly.indicating what it felt were the two disturbing features, the High Caur_t re-appreciated the entire evidence fully . and in depth and came to the conclusioJf that the user of the suit cabin was given to the responden!-'-plaintiff on ieave and ·licence basis and the. writing _Ext' No." I did not' rep~esent the real state of affairs' as far as the. re.pondent-plaintiff's fight· to use the .. suit cabin was concerned and that the sanie had been iaicen by late Dr. Amonkar only· •• for his' protection against his own. landlord, namely, Life Jnspraiice Corporation. The High Court· also ·negativ.ed the findings recorded by the Courts below.on the two lega).tssues"and held that the suit cab.in was "premises" within the meaning of s 5 (8) (b) of the Bombay Rent Act, the same having bee~· 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 Jicen~ee' entitled to. Claim protection under s. 15A: of the Act. ··The High Court's illterferenee with the concurrent finding of fact recorded by 'the two Courts below .on the factual issue as also its conclusions ~n the two legal issues are assailed bef~re ·~s in the instant appeals.·

pp. 653–654, margin C

The first contentfon urged by counsei' for· the appellant-defend: ants is that the question whether the ~ser of the suit ·qabin had been allowed to the, respondent,-plaintiff on· leave and Ji~ence.o!Jasis or because of his attachment as Honou.rary: Surgeon to Dr. Amonkar · Hospital and'whethor the writing fat.· No. J was a genuine document • and reflected the tnie nature of the artangement .between the partjes or not was purely a question ~f fact depending upon the evidence Jed by the parties and it was on an appreciation of ,the·oral and cl.ocumentary evidence· ancl. the surrounding circ~mstances that both the lower Courts, had come to 'the conclus,ion that. the' respondent~plaintif('s occupation of the, suit cabin: was not on leave and licence basis but onaccountofhisa\tachmentasanHoiiourary Surgeon to' Dr.Amonkar Hospital and that the writing E~t. No. I was not any camouflage or · facade obtained by late Dr. Amonkar ·for the purpose suggested by the respondent---'p)aintiff b.ut was' a genuine document which nfii'ctcd ·the real arrangement betwee11 the parties and, such a. concurrrn.t fir.ding of fact, unless it was perverse, which it was not because there wqs ample evidence record to support it, could not be int~rfer<d with by the flig)!_Court under Art: 227 .. CouriS~l further urged that the justification given by the High Court for inierfering with such ccncurrcnt finding uf fact was unsustainable inasmuch as the so·califd two disturbing features wer~ not really auy distrubing features much less .were theY suggestive of any !'lon:judicial approac)1 or some 'bias or partiality on the part of the lower Courts in favour of. the ·appellant-cl.cfenc.ants and /against tl\e respondent.....plai!'tiff. Counsel' strongly urged that · , the suggesti.on of non-judicial approach or of bias 9r ·of partiality on · the part of the .learned single Judge and the two learned Judges of the

p. 654, margin B

Appellate Bench of the Couhrt ofbSeme al\ CdaeuseBvs nas nunmwea~;:~~:d·H~:~ • called for and ought not to ave n ma . 0 , ~.

p. 654, margin F

r·

p. 654, margin F

...

p. 655

I: ' .

p. 655

AM~NKAR v .. (Tulzapurkar, J.) . 6SS Court's view. on the factual issue. was wrong. It wa·s.also ,contended. that evid,nce·clearly showed that the suit c,abin.had not been 'separately' given to the respondent-plaintiff: and in 'any case it was 'a rocm fo the hospital' and as s.uch' the respondent-plaintiir'was not ,entitled · to claim any protection of the Bombay Rent Act. Of\ the, other hand, cou;,sel for the respondent-plaintiff supported the .. High Court'g findings on all ·the issues and urged that there was no 'reason to ·disturb· the judgment !ll)der appeal. ·

p. 655

~.

p. 655, margin B

. This necessitates a.close scrutiny of the two disturbing featutes~ ;~ one pertaining to the·proceeding bef0re the, trial Court and the other pertaining to the judgment of the Appellate Bench-which according io the High Court ma(\,e it to undertak.e a re-appredati<Jn of the entire . evidence in depth as if it were a first appellate Court. lU-theirial Court after examining their two witnesses (he appellan(-defendants clc.sed their case on 18th September, 1976 and the case was fi"ed for ari;u,. ments 'an 4th of October, 1976,' o;, which day, however, argumen\s could npt be heard and the matter was adjdun1ed. Ii 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 ha~.· been showing payment of Rs. 223 per month to Dr. Amonkar as.rent;.

p. 655, margin B

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.

p. 655, margin D

On !2th of October, 1976 the resllondent-plairitiff ma~e an appljcation .A-statmg that on 8th October, 19"6, he had come to know that Dr.

p. 655, margin D

· Rawaiia had filed his Income Tax Returns showing that he ,had ·paid · Rs.1870lis rent for 1972-73, Rs.2250·as rent for 1973-74 and Rs .. 2275_,,<is rent for 1974-75 and had daimed deductions of the sai~. amounts as expenses and, therefore, (a) Dr. Rawalia. be nr~ Jkc'.Jcr further cross_,,xamination anU (b) tha1 his Jnccme Tax R~turns for the ·said thiee years be got produced through a witness summo~s or . le,tter ·of request being issued t~ the Co.minissioner ·of Income Tax, Bomay. Obviousiy, the application was made with a view to confront Dr. Rawalia by.his own Income Ta7Returns which he had fi~~d for provmg (1) that Dr. Rawaha had made a false statement and (11) that payments made by him to the apptllmit-defenc!:lnts bore the character of rent. It cannot be disputed that the aspects sought to be proved by recalling Dr. RawaHa and by ge~ting liis,.Jncome Tax Returns prcf.ued ·were relevant to the issue involved in the case, though· it is well'_ settled that a particular nomenclature .given fo paymentiymade . by a paliY is not conclusive or decisive of the wetter. 'fhe applicaticn :at£· dismissed. by the learned trial Judge· on 18th of October, J 976 and according to the High Court this rejection o! the application was a disturbing feature. suggestive of a non'::judicia.J approach, some bias '.or some partiality in favour of the appellaµt-d~fend.ants on the part'

pp. 655–656, margin D

of the learned trial .lud.ge .. In our vi.ew the comments of the !Iigh Court . in the matter of rejection of this applicati01{ would have had ;ome r force if the, application had been 6mply dismissed w.ithout giving any reasons but the learned trial Judge passed a lengthy order giving three

p. 656, margin A

reasons for the rejection of the application: (a) that vague averments . 'nvere made in the application about the -receipt of the information".

p. 656, margin A

regarding Income Tax Returns of.Dr. Rawalia on 8th·October, ·1976 without the 09casion for receiving the information or. the. sonrce of..._,,_ information, being indicated and that' when the Cm1rt made a qu'erry 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 respondeht-plaintfff came, i~ PC!ssession of the. said inf9rmation . after the cross-exarllination of ,witness over arid afte; th_c closure .of appellant-defe'ndants; case; (b) that under s. 1°38 (I) (bi of the Income Tax Act, 1961 the respondent-plaintiff could have and should have obtained the necessary information or material froin the Co~; missioner( of I~come Tax by making an application in the. prescribed form and, since he had not done so 1t would not be pi:oper to help him . t-0 get the information through the Court; in other words, if he had .attempted and failed to get the information by followillg 'the prescribed procedure the Court could have 11elped him; and (c) that the Co1,1rt's power to recall, and exainin~ any witness at any stage of the suit under Ozrder XVIII, Rule 17 of C.P.C., on which strong reliance-_..; was placed by Counsel for the respondent-plaintiff was· to be exe~cised in exceptional circumstances and no exceptional circumstance had

p. 656, margin A

been made out ·by the ·respondent_:_,plaintiff inasmuch as these .docu- · . ments would .have become available to him before he started the witness'~ cross-examination. May be in the exercise of iis di~cretion anot.her 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 nioon-&hine, flimsy or irrational the rejectiJn of the application cannot be dubbed as suggestive of non-jµdicial approach o~ bia.s or partiality on his part. It is also possible that the reasons . for givlng a ruliii.g on a point or'for rejecting an'applic;:ttion may be wrong or disclose a non-judicious exrcise of discretion and open _to oorrection in appeal, but no motive of a,non-judicial app!oach or bias or partiality could be attribuied unless, as we have said above, the

p. 656, margin E

reafons given ·are moon .. shine or so· flimsy or irrational that they are • 'llarcal. Cousidered ·dispassionately, such a tlling · can never: be said

p. 656, margin H

M~M. v ... S.A. .(Tu/zapurkar,l.) ' . 657

p. 657

\ - : . . ~ .- . . . f~;·. '."'-'. . . . . , about th<i"reasous given by the trial Judge for rejecting the application. · It is true that the appellafe Court has not dealt with this point though iu ground No. 27 of the Memp. of Appeal a point had been.taken that the application .had beeu '.wrongly rejected but in all ,probability it . was not argued by counsel otheru,ise the appellate. Court would have · dealt wi.th it. In the High Court no asscrti.on was made that the point was · actually argued or pressed before tjle Appellate Bench but it was meidy urged that althbugh a complaint against the rejection ~f the·

p. 657

appllcation·had been made in Ground .No. 27 of the Memo.of Appeal · f, the' anpellate Court has tj°ot dealt with.it. This al~o .shbws th~t the·. ~ejection was not' regi;rded by the respondent-plaintiff or hjs counsel ·,~ before the appellate Court as any serious or disturbing feature. In any· ..

p. 657, margin B

case, as stated earlier, the rejection of the appliciition could not be regarded as h~ving stemmed from anx_ oblique motjve or. purpose. This so~alled .disturbing feature., therefore, did not afford any justification to the;I{igh 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. · · ~·

p. 657, margin C

...

p. 657, margin C

Turning 'to the judgment of the' Appellate Court, the so-calkd disturbing feature 'noted by the High Court, is, in our view, so. innocqous and inconsequential that it cO'uld hardly afford' any justification to re~appreciate the whole evidence as· clone by it. It appears that during the. hearing of the appeal after .supporting the trial Court's finding on {t~ factual issuy as .also .th<o'firidings on' the legal issuj)s and' pressing · to their acceptance, counsel for .the ,appellant"rllefendants put for- . ' ward an alternative l~stsubmissicin that even proceeC!ing. on the assumptfon that allc ora1 lice~ce h.a4. been created in. respondent--'plaintiff.'s

p. 657, margin C

favour by-late ill. Amonkar, as alleged by him, ·the material on record . . '"\ ·showed that the'sai~ Jicen.cedid not subsist on the rel~vant date,.namely, .

p. 657, margin E

1-2-1973, mentioned in' s 15A ·and, therefore,, he was not entitled to . an~ protection under the Act, and in -that behftlf an averment made by . the respo,ndent-plaintiff in paragraph 4 of his Complaint dated·. li4-3"1.973 addressed 'tothe Inspector ofJ>oli~e, Gamdeyi.Police Statlcm was relied, which avermen!' runS'thus: ·"Ever since ihere has been a · , · publicity in the newspaper. that the Govt. of Maharashtra is aboJ;..

p. 657, margin F

shing ~he leave and licence system (meaning thereby that the Govern-· ,,;... ment is t!tinking ofconve~ting occupa.pisunder leave and licence basil into 'deemed tenants') ·Dr.· (Miss)· Usha .Amonkar and Dr. D.f>.C. · Amonkarare asking him to vacate the premises",' and the. contention was that .since the Bill· amending the Bombay Rent Act (snbsequentlf numbered as Act XVII of 1973) had. been introduced or publiihet'I itl. .

p. 657, margin F

'_. . . .. .

p. 657, margin F

'~ ' . 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 intrddnced (not in the Assembly) in 'newspapers for, information to the public in August 1972 and held that the· respon- Mnt-plaintiff's .licence, iftany. was not subsisti11g Isl of febn\ary, 973 am! he as riot enti.tied to protection ev. en if his.·~ase were assumed to be true. ·'According to the High Court such a conclusion drawn b)• the appellate Bench w~s an impossible one having regard to the plead-· ings and the cyidence on record, foi-, according to•the High Court, it was by notice dated 20th March; 1973, issued by the.widow of I~ Dr. Amonkar that the respondent-plaintiff was.categoric~lly told that ' he should make altefnativc arrang~ment for his consultation practice elsewhere with effect from 1-4-.1973 which showed that his licen£e was tenninated·with effect from date. It must however be bcrne in mind that· whi1t was termi~atcd h'' the notice dated 20th. , March, 1973 was the respondeJ1t_,:plaintiff's attachment as an Honow rary Surgeon to Dr. Amon kar Hospital and. not his licem:e. ln fact, it was never the case of the appellant--defendants that the respondentplaintiff was a. licensee and. _therefofc,_ neither their pleac\ing nor their notice could be used for showing that the. respondent-pl,,intiff's licence. continued upto Jst ~f April, 1973. The appellat-e Court while accepting the alternatiye s~bmission was proceeding on the- assumption that the resopondent-plaintiff's occupation was as a licensee and on that basis it considered what would be the effe~t of the avermrnt made by him in para A of his complaint which suggested that his oral lice".~~}.. 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 recorc, the same! contd· at the highest be regarded as a '~rong conclusion but ·it is impossible to say that it was suggestive of a non-juc\icial apprcach or bias or partiality on its par!.. Secondly, it amounted to acceptance of the alternative contention on an assumed basi.s 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 agree~ent· with the trial Court in favour of the appellant-defendants: In other words, theconclusion. qn the_alternatiVc subrn~ssi~n ·,vas not 1nere1y i.nnocuous i.e. unmotivated by any oblique purpose but inconsequential to the dispcc -lsal of the case. Ha'{ing 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 <iutght !'ot to ha.ve interferred . 'with the concurrent finding of fact recorded by t]·,e two Courts below · on tb.e factu.al iss~e arising in the case. •

pp. 657–658, margin F

Though _the aforesaid conclusion of ours would be sufficient to ' ·dispose of the appeals, even on-merits we feel that the broad f~aturc• · , emerging from the, evidence ori reeord make it d.ifficult to accept t.he: : respondent-plaintiff's case that .the user of the 'suit cabin was penriitted to him on leave and licence basis as claimed by him. Admittedly, Dr. Amonkar H'ospital was never exclusi~eiy a Maternity and Gynaeocological Hospilal and had a 'Nursing Home Department where general e>perations were undertaken and as such.attachment of couple of doctors as Honourary S.urgeons to it would he most natural and. since r.t the : materi<il time. both the _senior Dr. Amonkar_ (since deceased) an<\, the .. junior Dr. Am?nk~r (defendant N~. 2) were on account of their ill- ·~Jiealth, unable lo work with full vigour, with only <1.octors (Dr. Mi•s ' . Usha Am0nkar and.pr Rawalia) in attendance the resp<'m.dent--'-plain- 'tiff's attachment as H~lriourary Surgeon to it for temporary dt\ration till Dr, IMrs.) Gaiton.de r~urned from Calcutta, couldnct be said to be un~ecessary ~s opinefi by 'the High ·court but wis.more probable .. Even. the High Court· has observecfthat late Dr .. Amonkar had obliged the~ respondent-,,p)aintiff by accommodating him in the suit cabin· tempi>rarily when he was suddenly made. to fowe his premises o.n the third floor. of the very building and that the respondent-plainti,ff had iaken- advantage of the gesture shown to him by late Dr. Amonkar as Dr. (Mrs.) Gaitonde was away at Calcutta. ' . ~.

p. 659, margin A

. Secondly,. even the High ~urt ha• accepted the po_siiion thaf the ( ·user of the suh cabin became. available ~o the respondent-plaintiff .0._as a result of his d!fect approach to late Dr. Amonkar but through the _intervention and good offices of Dr. Rawalia, arid has fully supported · ti1e Appellants-Defendants' case that such user was allowed to the respondent~-plaintitfan the.same terms on ~hich he had been permitc. ted the user of his cabin In-that Hospital, namely, b;causeof 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.· Aprt from some minor contradictions (which were really omissions) that appeared in his evidence in light of the averments made by hiin 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 fall)ily and that he had displayed-an · attitude of befog ever willing to sign any afii.davit or to swear to any~.,. thing'lo 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 an\ prepared . to go .as and when they will tell me to get out", wh1clt ·showed tltat • •

pp. 659–660, margin E

'· '660 illJ!'REME COURT REPORTS (\1)84] _2 he had identified ·himself with·.Amonkars. In cur.view these aspects f':would. not be good reasons for discarding his evidence. True, s0md of .:'.his.answers do show that he was having dose ties .with the Amonkar ·family but.this is not unnatural if itis borne iQ mind th~.t he has been. i<'.wotking with them ii:t that Hospital since 1954 and the.mere fact tht:t · 'lie' has··s'tated that he was prepared to "go ;.,hene:ver Amonkars would rask him to go would not show that there was any private or secret- : understanding between him and Amonkars as was sought to be. sug- ; gested by counsel for. the respon,dent-plaintiff. Since, he ,was a signa-. i' tory to writing Exh. No. 2 all that he wanted \o convery was that his 'user of the cabin wasbecause of his attachment as Honourary Surgcot~ : to Dr. Amonkar Hospital'and as such his ri'ght to occupy the· cabin

p. 660

would. come t" an end as and when his attachip.ent woula cease, that"· . ' is to say, as and when Amonkars would ask. him to go. Far from show- . ~ ing any· interestedness in the Amonkars his aforesaid statement was . . admission against bis 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 tbese 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 stick-:

p. 660, margin C

ing to the arrangement to which he "."a~ a signatory and fo5net behaving: '

p. 660, margin C

the manner as :respondent-plamttff has done, would be a travesty._, 'of justice. : Thlrdiy: turning to the do,oumentay eyidtinc, itmustheobserved . Uhat the three.or fo11t receipt produced by the respondi:nt-plaintiff' ; showing monthly payments made by him would be of no avail bec!'nse I' \he nature or the character of th<i payment, whether it was by way of ' compensation or towards ratable expenses, has no where been indicated 'in any of them. But s.o far as Exh .. No. 1 is concerned it is clear,that

p. 660, margin C

this document in terms indicates that the respondent-plaintiff was" \~permitted, to use the suit ,cabin not on leave and licence basis but be- ' -cause of his attachment as Honouiary Surgeon to Dr. Amonkar Hospi- ~ tal and truiJ it contains a.categorical admission on'h.is par!'tJiat he was ·

p. 660, margin C

... neither a tenant nor a licensee thereof. In cros~xamination respon_- . · .. ~ dent_:plaintiff admitted that be had signed this documen.t after. fully ..

p. 660, margin C

:~understa,nding the contents thereof. If that be so, .his oral _testimon,Y,j . ·:.which runs-counter to the document cannot obv10usly .be accepted ' :·unless, ·of, course: the document'is ·showu to have,,been obtained. by- ' late D~; ~monkar from. him °for the purpose of avoiding a p_ossible ~ objection that might be raised by 'the LI.C: and was not to be acted Up ..

p. 660, margin G

lillgjlested by the FOspoudent:._plaintifr,, As. regards the motive or ..

p. 660, margin G

. ' purpose for which the document wassaicl to ha~e be;,iiobt~ined.there are two cir£umstances which militate against it., Jn _the first place nt the material time that is in May l 970 uniawful subletting· of promises ' was a. ground for eviction and not ihe giying it on leave and licence bas'is:and. late Dr. Amonkar might have faced some difficu.Jty from his own landlord, namely, L.·I.c. if he had sublet t~,e ~aid c~bin to the respondent-plaintiff but at that time it coufrf not be within the contem· plation.of anybody to.seek protection ~gains! givlngpre~ises.on licence · ' a!So, and even so Ext. No . .! in terms records that respond.ent-pleintiff was neither a ienarit nor a licensee -of the suii' cabin. Such·a double protection wa~ un"necessary as agalnst the L.I.C. but: i.t was necessary as against therespondent-plaintiffto.whoin late Dr. Amonkar want<d . to ensure th~t the use'r of the cabin w~s ·allowed only .fo the capacity of anattachea Honourary Surgeon to the Hospital and in no ~ther

p. 661

- - ·and that is-what" Ext. No: J says, In our vi.ew, the. motive suggested by the re.spondent-'plaiiitiff does noi fit in with the sifoati0n ·or stilte ·of affairs that existed in May,_1970 and. the document really records the true transacti~n between-the parties; namely, that the· respondent- . plaintiff was·alJow~d 'the user of the suit cabin because df his attacliment as, H<iuorary Surgeon to' Dr, Amonkar .H:ospital.·:_Secondiy, if E.xt. No. 1 was not to be·acteci upon and it was·signed byr~spondent­ plaintiff on the representation made.to him by late Dr, "Amonhr that it wa~ simply for the purpose of protecting hli;nself against the L.fC. and was not to M nsed against the respo.ndent-'-plaintiff, ihe re'spon-

p. 661, margin C

dent~plaintiff could 'have obtained froiii later Dr. Amonkar.a writing ,1.._tl]at effect which he could have preserved'. ~or hjs own safety but no such \Vriting was obtained by bin). from late Dr. Amonkar and, in our · view, if.the respond.ent-plantiff's yersion were true that ExL No. 1- · had been obtained on.'tbe ·alleged representation two writings coul_d ·have been execute<\ and preserved by each for his· own safety'but this was not done. Iftberef0re, resp6ndent-p1aintiff's suggestiop as to why Ext. No. 1 was obtained by late Dr. 'Amonkar from him' is not' believable-and for the reasm;tS indicated above it is.riot-the respon-. dent-'-plaintiff must be held bound·by the writing E>:l .. No. !;which he execute~ after fully understanding the ·contents thereof and .his· oral" testimony·that the user of the cabin was giv·eu to him on leave and · licence basis cannot be. accept~d. _ 1 · · ,

p. 661, margin D

It may· be stated that the main reafon why the.-High Court felt that Ext. No. I did not reflect the true' nature of the transaction between the parties was that no documentary evidence was produced by the . appellant~efendants to show that actually medical sorviees were _rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On

pp. 661–662, margin D

~his point there was· merely tlie respondent~plaintiff's word as against ,.:ot)l.e testimony of defen{!a,nt No. 2 and Dr. Rawalia. Respondent-plain- . . tiff claimed that he had not rendered any services to Dr. Amonkar HosJ:itaras .an attached Honourary ·surgeon thereto ·while bo!l; the· witnesss on the side of the appellant-<lefendanis asserted that con~ aultations 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" responsible and restrained manner-shouid not have been accepted ·on the point. Defendant No. 2 had cle~rly stated in his evidence that oonsultations with the respondent-plaintiff were ll.e!d whenever preoperative or :post-operative problems arose in maternity cases and this was don~ at least 4 or 5 times a month and he was consulted in his capacity as an Honorar¥ Surgeon ;:ittachec\ to the Hospital. ~t is true that no documentary recorg of· such consultations was · produced but whether any record of consultafions would be maintained or not would depend upon the· nature. and t:vpe of consultations made and it is eq1hlly possible that due to lapse of time 'that had occurred between ·auch consultations and the trial such record may not have been preserved. In 'our view defendant No. 2:s evidence in this behalf heed not

p. 662, margin A

have been rejected simply.' because no record of such consultations I, 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. Amorikar Hospital for performing . operations· ,;-n his private patients a.nd though there is a controversy as to whether such user of the Operation 'Theatre was freJ; .of charge ·or on payment, in our ·view such user of Operation Theatret 2gether with the facilities atiached thereto would not have beell) perrnitt~d 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 respondentiaintiff obtained an interim injunction) the respondent· . plaintiff had ~o servant of liis own attached to the suit'cabin but he was getting the iervices fro~·the inembers of the Hospital staff in the matter of sweep-

p. 662, margin B

ing, cleaning and dusting. of hi~ cabin, ~ceivi~g .his. patients. m the· . , commoi:i waiting room and ushrmg the~ mto his cabm for which no

p. 662, margin F

eparate payment was b~ing. made hr him. Were he _an mdepen~ent.'.' · · lioeaiee of. the liuit cabin :!lnd not attached-to the Hospital such service. would noLhave been mai!e available to him free. of charge.

pp. 662–663, margin F

Jn our~\iew the aforesaid broad features emerging from the · evidence on record clearly ·)upport _the- e.ppellanis-i.\efeno.ants' cose that the .user of the suit cabip.·was allowed to. the respondent-·plainti(f not on leave and ~icence basis· but because Of his attachment" as: Honou- · rary Surgeon to Dr., Amonkar Ho~plta'I.' Such being our conclusion on the factilal'issue it is un-necessary for us to deal with or discuss the . · other two sen!i_'.legal iss~es that wore argµed before vs in the~ppeals.

p. 663, margin A

We are clearly of the view that the High_Court was .not right' in revers- -~ ing the concurrent ,finding of fact recorded: by bpth the· courts below and even on merits the High Colirt judgment cannot be sustained: The. appeals are therefore allowed and the High Couri -judgment is· set aside and the· concurrent firi!).ing of both the lower· courts ~n the. facttial issue .is restored. 'The ·dismissal of the declaratory suit and the findings in tii.e Eject:lnent Appiication E.A. No. 259/E of 1976 are confirmed. Parties will bear their re~.Pective costs tbr6tigho.ut.

p. 663, margin B

.·tf S.R.

p. 663, margin D

.__

p. 663, margin D

.--- ..

p. 663, margin D