ivil Appeal No 4077 of 1982
From the Judgment and Order dated 238
1982 of the Punjab and Haryana High Court in Civil Revn
No 2588 of 1980
GL Sanghi SK Mehta MK Dua SM Tandon PN PuriR Jagannath Goulay and Aman Vochher for the Appellants
Dr YS Chitale HK Puri and Ashok Jain for the Respondents
The Judgment of the Court was delivered by VENAKATACHALIAH J
This Appeal by Special Leave by the Landlord arises out of and is directed against the Judgment and Order dated 239
1982 of the High Court of Punjab and Haryana in Civil Revision Application No 2588 of 1980 allowing the Respondent tenant s appeal and in reversal of the concurrent findings of the court below that there was an unauthorised sub letting dismissing Appellant s application under Section 13 of the East Punjab Urban Rent Restriction Act 1949 Act for an order for grant of possession
There were other grounds for eviction one of them that there were unauthorised structural alterations but having regard to the limited scope of the proceedings before the High Court
those other points do not survive
PG NO 316 2
The two appellants mother and son as owners of the commercial premises SCO No 15 Sector 17 E Chandigarh granted a lease under deed dated 25111970 in favour Ms SChokesiri  Co respondent fierein
The lease was for a term certain of 10 years from 1 11971 under the terms and on conditions particularised in the Deed
Rent was initially Rs3000 per month subject to certain increases stipulated in the lease deed
Respondent carries on a business in clothing and textiles under the name and style Saree Sansar in the demised premises
The principal ground and the only ground that survives on which eviction was sought was that the respondent had in about the year 1973 unauthorisedly and without the consent of the appellants inducted two sub tenants in two portions of the premises whothere after carried on their respective businesses of their own in the respec tive portions so sub let
One was a tailor a certain Banwari Lal who carried on his business under the name and style Royal Star Tailors and the other
Agia Ram Lamba Proprietor of MS Kwality Restaur ant who established a business under the name and style Ms
Kwality Ice Cream in the portion sub let
The specific defence to this charge of sub letting and the explanation for the admitted presence of those two other busines establishments in the premises had better be excerpted from the respondent s additional written statement The respondents have not sub let any part of the demised premises to any one
The whole of the demised premises are in the exclusive possession of the respondents and are being used for the purpose of carrying on the business of the respondents namely selling cloth and readymode garments and for purpose subsidiary and ancilliary to the said business  
 No part of the demised premises has been sub let by the respondent to MS Kwality Ice Cream or any tailors
Sector 17 is the most fashionable shopping centre of the city
Most of the customers who frequent this shopping centre are ultra modern persons
It is a matter of common knowledge that in modern shopping centres the owners of show rooms whatever the nature of their business keep small booths to provide cold drinks ice cream and paup corns etc to the customers who come there with their children and spend PG NO 317 considerable time making purchases in the show rooms
The maintenance of such booths has become a necessary adjunct of all big shops in modern shopping centres Similarly is well known that in order to run the business of selling cloth efficiently it is necessary to have a tailoring shop on the premises
Every customer who makes purchase of cloth in any cloth shop of any consequence wants consult a tailor in order to know exactly the length of the material that will be required by him for preparation of garments of his choice and most of the customers also like to have the garments stitched by the tailoring outfit on the premises of the cloth shop more especially when the customers belong to sophisticated upper class
 The respondent also produced and relied upon the agreements dated 139
1973 entered into between Respondent and the said Banwari Lal of Royal Star Tailors exhibit Mark B  and dated 1791973 between the Respondent and the said Agia Ram Lamba of Ms Kwality Restaurant exhibit Mark A  the terms of which according to the respondent clearly excluded any possibility of sub letting
Appellants in support of their allegation of sub letting relied particularly on the Report and evidence of Sri SK Chhabra Advocate Court Commissioner AWI who in his report substan tially corroborated appellants  charge of sub letting of Ram Lal Malhotra AW 2 and Inspector in the Enforcement Office who spoke to the notice stated to have been issued by the authorities in regard to the partitions effected in the premises to accommodate the Tailor and the Ice Cream Vendor or Ravinder Pal Singh AW 4 A customer of the Ice Cream Parlour who spoke about the exclusiveness of its possession of Nirmal Singh AW 5 who gave a similar account respecting the tailoring establishment of Davinder Singh AW 7 the husband of the first appellant and father of the second
who spoke about the nature and extent of the alleged sub letting and of the exclu siveness of the possession of the sub tenants of the portions in their respective occupation and certain other matters and of Kul Rajinderlal AW 8 who took photographs Exhibits AW 81 to 4 which are stated to disclose that the Ice Cream Parlour was open late in the night even after the respondent s textile business had been closed
Mehtab Singh Gill the second appellant tendered evidence as A W 9
Some documents were marked and relied upon in evidence on appellant s side
Respondent examined amongst others Rajinder Kumar RW 2 stated to be an attestor of Exhibits Mark A  and Mark B  ML Sharma RW 3 a Senior Architect in Chandigarh administration who produced the Plans at Ext R 4 Surinder Mohan RW 5 the tailor s son Swatantar Kumar RW 6 a partner of Ms Kwality Restaurant Parveen Jain RW 7 who was examined to contradict AW 8 in regard to the time at which the photographs Ext
AW 81 to 4 were taken Baldev Raj RW 8 the Manager of Ms Kwality Restaurant Krishan Lal RW 9 an employee of Ms Kwality Ice Cream and Des Raj Jain RW 10 a partner of the respondent firm
The relevant portions of document Mark A dated 179 1973 say l That 1st party will provide Softy Ice Cream Machine along with one employee at their premises and the whole Softy Ice Cream will be supplied by the 1st part at his own risk and costs
8 That both the parties can terminate the system at any time without any notice
In that case the 1st part will take away the machine from the premises
 The relevant recitals in the document Mark B dated l391973 provide  1 That the first party will do tailoring work only in the portion ie back court yard and he will keep the employees with the prior consent of the second part and the premises will be locked in the evening by the second part
The possession will remain with the second part
2 That the arrangement has been done as it is beneficial to both the parties and it will boost the business of second part and the first part be licencee in the premises and licence can be revoked will only sic at any time without any notice and in that case the 1st part will remove his machine and other articles
The 2nd PG NO 319 part will not liable to pay any damages
The learned Rent Controller on an appreciation of the evidence on the point was persuaded to the view that while the allegations of sub letting in favour of the tailor had not been established the case of sub letting so far as the Ms Kwality Ice Cream was concerned had clearly been established
It is relevant to mention here that sometime in the year 1976 after the institution of the proceedings the Tailor gave up his business and vacated the portion in his occupation
In about the year 1980 the Ice Cream Vendor is also stated to have gone away
Learned Rent Controller held that the evidence on record indicated the exclusive possession of the Kwality Ice Cream and that in the circumstances of the cases it was also legitimate to draw an inference and raise a presumption that monetary consideration alone had prompted the respondent into the transactions
Accordingly the learned Rent Controller by his order dated 23
1979 allowed the appellants  application and made an order granting possession
The appeal preferred by the respondent before the District Judge was unsuccessful and the order of eviction came to be upheld
The Appellate Authority also found that even in the case of Ms
Royal Star Tailors there was a sub letting
The Appellate Authority held So in the cases in hand two exclusive portions have been parted with for Ms Royal Star Tailors and for Ms Kwality Ice Cream and the only conclusion in view of the evidence on record could be that the premises has been sublet and the documents Mark A and Mark B could not be termed as licence deeds by any stretch of imagination Hence so far as the finding on the ground of sub letting is concerned I do not find any reason to differ with learned Rent Controller and on this point I affirm the finding of the Rent Controller on this part of the issue
The High Court by its order dated 238
1982 in Civil Revision Application No 2588 of 1980 however in exercise of its Revision jurisdiction and upon a re appreciation of the evidence set aside the concurrent findings of the Courts below in regard to the element of exclusive possession and set aside the orders of eviction passed by the Courts below
Consequently appellants  application for possession was dismissed
PG NO 320 In reaching this conclusion the High Court placed reliance on the two documents Mark A and Mark B entered into between the respondent on the one hand and Ms Kwality Restaurant and Banwarilal the Tailor respectively on the other
The High Court observed A look at these documents goes to show that it was specifically mentioned therein that the possession of the demised premises will remain with the petitioner tenant and only the work connected with the supply of Softy Ice Cream and tailoring was allowed to be carried on
Except for the charges for the electricity consumed no rent is payable by the third parties to the petitioner
The agreements further envisage that the licences could be revoked at any time without any notice
The conditions prescribed in these documents do prima facie indicate that it was a cast of licences and not of sub letting
 Referring to what it thought were certain procedural objections in accepting the Report and the evidence of the Court Commissioner AW 1 which had been accepted by the Courts below the High Court was persuaded to this view It appears that the Authorities below have given great importance to a report of the Local Commissioner who was appointed during the trial for inspection of the demised shop
It is not disputed that the order appointing the Local Commissioner was passed by the Rent Controller ex parte without notice to the petitioner
In the first place there is nothing on the record to indicate that the petitioner was at any stage afforded an opportunity to file objections to this report as is usually done in such matters
 In regard to the correctness of the Report itself the High Court had this observation to make The Local Commissioner made a report Exhibit A 1 to the effect that there are three separate portions on the ground floor where the demised premises were situated and each of these portions had a separate access
A material part of this report is that none of the above portion is PG NO 321 approachable from inside the demised shop
If this report of the Local Commissioner would have been correct there may be something to say in favour of the land lords on the points of the conferment of exclusive possession of the portions to the third parties
There are however circumstances to show that this report is not factually correct The High Court placed reliance on certain plans said to have been submitted for effecting certain alterations to the building which are stated to have contained the signature of the first appellant to come to the conclusion that consistent with the structural dispensations indicated in the plans the alleged sub tenants could not have had exclusive possession
On this aspect the High Court observed These plans were proved by ML Sharma Senior Architect RW 3 who testified that they bear the signatures of Rajbir Kaur respondent landlady
In fact their correctness was also admitted by Devinder Singh Mukhtiar and husband of Rajbir Kaur andlady
These plans according to learned counsel for the petitioner indicate that after entering into the main gate of the shop one could go into the portion which was permitted be used by the Kwality Restaurant for supply of Softy Ice Cream
Similar is the case with the portion occupied by the tailor
The learned counsel for the respondents has not been able to rebut fact
This being so the question of parting with exclusive possession of any portion of the the shop in favour the of the two alleged sub tenants does not arise
 Emphasis Supplied1i 13
The contentions of Sri GL Sanghi learned Senior Advocate in support of the appeal admit of being formulated thus a The High Court was in error in interfering in exercise of its revisional jurisdiction with the concurrent finding fact recorded by both the Courts below as to the exclusivity of the possession of Ms Kwality Ice Cream of the portions in which it was carrying on of its business 
This was a pure question of fact the concurrent finding on which was not amendable to interference in execise of revisional powers under the Act  PG NO 322 b That reliance by the High Court on the evidence of RW 3 and Plans Exhibit R 4 to show that the structural modifications indicated an accessibility between the main premises and the portions in the occupation of sub tenants was wholly misplaced as indeed Exhibit R 4 was itself produced in a totally different context and for altogether different purpose viz to meet the ground of eviction based on unauthorised construction and not for purposes of rebutting exclusive possession of the sub tenants c That even if the Revisional jurisdiction of the High Court admitted a re appreciation of evidence a finding of a fact which was the result purely of appreciation of oral evidence by the trial court could not be interfered with even by an Appellate Court and a fortiorari in Revision d That the view of the High Court as to the alleged infirmity of the Court Commissioner s AW 1 report on the ground that his appointment was not preceded by a notice to the Respondent was erroneous
Dr Chitaley learned Senior Advocate for the respondent sought to support the order of the High Court contending in the main that where a finding of fact is shown to have been rendered infirm and vitiated by a misreading of evidence and a non consideration of material evidence and where the inference and conclusion drawn from the evidence is non sequetor the Revisional jurisdiction under the Act  which is wider than that under Section 115 CPC could be invoked to correct errors even in findings of facts and that at all events the finding of a question of sub tenancy being a mixed questions of fact and law this Court even on an independent consideration of the whole matter should not interfere as one of the essential ingredients in the concept of a sub lease viz the existence of monetary consideration in the form Rent  as distinct from consideration by way of services was wholly lacking
Learned counsel however emphasized the correctness of the finding of the High Court on the lack of exclusive possession on which alone according to the learned counsel the appeal should fail
Such controversy as exists in the case turns solely on whether the relationship between the Respondent on the one hand and  Ms Kwality Restaurant and the Royal Star Tailors on the other is one of sub letting
Dr Chitaley contends that the two transactions lack the PG NO 323 normal and the usual indicia of tenancy and were no more than mere Personal privileges or personal licence to occupy and that no interest in the property was transferred
This case indeed presents once again the recurring facets of a familiar controversy whether the transaction between a tenant and the person alleged by the landlord to be his sub tenant is in law really one of sub tenancy which often resembles and is Most liable to be confounded with a licence
One of the twin principal tests by which a lease is distinguishable from the relationship created under a licence is the element of the right to exclusive possession involving the transfer of an interest in the property the other being the rent  stipulated for the grant
In Wood vs Leadbitter 153 ER 351 at 354 Baron Alderson emphasized the element of the transfer of interest A dispensation or license properly passeth no interest nor alters or transfers property in anything but only makes an action lawful which without it had been unlawful  In Glenwood Lumber Co vs Phillips 1904l AC 405 at 4o8 the distinction was pointed out thus If the effect of the instrument is to give the holder an exclusive right of occupation of the land though subject to certain reservations or to a restriction of the purposes for which it may be used it is in law a demise of the land itself
 It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that furtherthe grant be for consideration
While the definition of Lease  Section 105 of the Transfer Property Act 1882 envisages the transfer of a right to enjoy the property on the other hand the definition of a Licence  under Section 52 of the Indian Easements Act 1982 consistently with the above excludes from its pale any transaction which otherwise amounts to an easement or involves a transfer of an interest in the property which is usually involved in the case of a transfer of right to enjoy it
These two rights viz easements and lease in their very nature are appurtenant to the property
On the other hand the grant only of the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence
But the converse implications PG NO 324 of this proposition need not necessarily and always be true
Wherever there is exclusive possession the idea of a licence is not necessarily ruled out
English Law contemplates what are called Possessory Licences  which confer a right of exclusive possession marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses
See John Dewar Licences and Land Law
Modern Law Review Vol
49 No 6 Nov 1986 and section Moriorty Licences and Land Law Legal principles and public policies1984 Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence for even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease
In the last analysis the question whether a transaction is a lease or a licence turns on the operative intention of the parties and that there is no single simple litmustest to distinguish one from the other
The solution that would seem to have been found is as one would expect that it must depend on the intention of the parties See Cobb vs Lane 9521 1 All ER 1198
In Merchant vs Charters 1977 3 All ER918 at CA Lord Denning MR referred to the tests for determining whether an occupier is a licensee or tenant thus Gathering the cases together What does it come to What is the test to see whether the occupier of one room in a house is a tenant or a licensee It does not depend on whether he or she has exclusive possession or not
It on whether the room is furnished or not
It does not depend on whether the occupation is permanent or temporary
It does not depend on the lable which parties put on it
All these are factors which may influence the decision but none of them is conclusive
All the circumstances have to be worked out
Eventually the answer depends on the nature and quality of the occupancy
Was it intended that the occupier should have a stake in the room or did he have only permission for himself personally occupy the room whether under a contact or notin which case he is a licensee 11
In Associated Hotels of India vs RN1960 1 SCR 368 at 383 this Court referring to the classic distinction between a lease and a licence said PG NO 325 There is a marked distinction between a lease and a licence
Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised
Under Section 108 of the said Act the lessee is entitled to be put in possession of the property
A lease is therefore a transfer of an interest in land
The interest transferred is called the leasehold interest
The lessor parts with his right to enjoy the property during the terms of the lease and it follows from it that the lessee gets that right to the exclusion of the lessor In BM Lall vs Dunlop Rubber Co1968 1 SCR 23 at 17 the distinction between the two concepts was brought out A lease  is the transfer of a right to enjoy premises whereas a licence is privilege to do something on the premises which otherwise would be unlawful
The transaction is a Iease if it grants an interest in the landit is a licence if it gives a personal privilege with no interest the land  In Qudrat Ulah vs Municipal Board Bareilly  at 204 it was stated  
If an interest in immovable property entitling the transferers to enjoyment is created it is a lease if permission to use without right to exclusive possession is alone granted a licence  In Board Revenuer vs A M Ansari1976 3 SCR 661 at 665 it was again observed  it is the creation of an interest in emmovable property or right to possess it that distinguishes a lease from a licence
A licence does not create an interest in the property to which it relates while a lease does
There is in other words transfer of a right to enjoy the property in lease   In Dipak Banerjer vs Smr
Lilabati Chakrobory 3 454 at 456 Sabyasachi Mukharji J observed PG NO 326 But in order to prove tenancy or sub tenancy two ingredients had to be established firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must in lieu of payment of some compensation or rent
However in regard to the second requirement of consideration for the transfer of the right to enjoy the property it was in that case held that though Section 105 of the Transfer of Property Act envisaged even services  rendered by the lessee as a consideration for the grant however under the Rent Acts the position would be different
The proposition was noticed thus  The question is whether in the context of the provisions of Rent Act services can be consideration for sub tenancy
In other words whether in view of the provisions of the Rent Act services can be a good or any consideration for sub lease is the question
Answering it was held We are of the opinion that it cannot be It is however not possible to accept that services in lieu or the right of occupation would amount to receipt of rent under the Rent Act to create sub tenancy
This frustrates and defeats the purpose of the Rent Act
Again in KhuliI Ahmed Bashir Ahmed vs Tufelhussin Samasbhai SaranpurwalaJT at 348 Sabyasachi Mukharji J observed To put precisely if an interest in immovable property entitling the transferee to enjoyment was created it was a leaseif permission to use land without exclusive possession was alone granted a licence was the legal result
We are of that opinion that this was a licence and not a Iease as we discover the intent
The question is whether in the present case the evidence on record justifies the inference that the tailor and the Ice Cream Vend or were put in exclusive possession
Dr Chitaley contended that the question would require to be determined upon a proper construction of the deeds entered PG NO 327 into between the parties and that alone is decisive of the matter
Indeed learned counsel placed strong reliance on the following observations by this Court in M N Clubwala vs Fida Hussain Saheb  Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the inten tion of the parties
This intention has to be ascertained on a consideration of all the relevant provisions in the agreement  Emphasis Supplied The proposition of Dr Chitaley as to the conclusiveness of what emanates from the construction of the documents has in this case its own limitations
The import significance and conclusiveness of such documents making or evidencing the grants fall to be examined in two distinct contexts
The dispute may arise between the very parties to the written instrument where on the construction of the deed one party contends that the transaction is a licence  and the other that it is a lease 
The intention to be gathered from the document read as a whole has quite obviously a direct bearing
But in cases where as here the landlord alleges that the tenant has sub let the premises and where the tenant in support of his own defence sets up the plea of a mere licencee and relies upon a deed entered into inter se between himself and the alleged licencee the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed
At best it is a piece of evidence the weight to be accorded to which will necessarily depend upon all the other circumstances of the case
The tenant and the sub tenant who jointly set up a plea of licence against the landlord may choose to camouflage the truth and substance of the transaction behind a facade of a self serving and canveniently drafted instrument
The transaction might be collusive and a mere mask the parties choose to wear to confuse and confound third parties
In such a case the realities and substance of the transaction and not merely the deed become the basis for the determination of the legal nature of the relationship
The deed is a mere piece of evidence
In deciding whether a grant amounts to a lease or only a licence regard must be had more to the substance than the form of the transaction
It is determined by the law and not by the label the parties choose to put on it
To give exclusive possession there need not be express words to that effect it is sufficient if the nature of the acts done by the grantee show that he has and was intended to have the right of exclusive possession
The fact that the PG NO 328 agreement contains a clause that on tenancy is to be created will not of itself preclude the instrument from creating a lease
In B M Lall s case   at 27 this Court observed  The question is not of words but of substance and the label which the parties choose to put upon the transaction though relevant is not decisive
The test of exclusive possession is not decisive though it is a very important indication in favour of tenancy
Contentions a and b could conveniently be dealt with together
Sri Sanghi s first contention is the non availability to the Revisional Court of the power to reappreciate evidence and substitute a finding of fact of its own in place of the concurrent finding of the Court below
The cognate question is whether the concurrent finding of exclusive possession of Ms Kwality Ice Cream is supportable on the evidence and if so whether the High Court could in revision have substituted a finding of its own on the point
It is true having regard to the language of Section l55 of the Act conferring revisional powers which include an examination of the legality or propriety of the order under revision the High Court can in an appropriate case
reappreciate evidence and interfere with findings of fact
But the question is whether that was called foe of justified in the present case Sri Sanghi pointed out that finding of the trial Judge on the question of exclusive possession of Ms Kwality Ice Cream could not be found fault with on the alleged ground of any non consideration of material evidence
He submitted that the finding was supportable on the evidence
Sri Sanghi particularly referred to some admissions of the respondent s own witnesses in the course of their evidence
Learned counsel drew attention to the deposition of Krishan Lal RW 9 who while admitting his identity in the photograph exhibit AW 84 said In Exh
AW 84 I am sitting
I was cleaning the Machine
My one hand was near the mouth
Portion of Softy is separate
It is correct to suggest that the Proprietor of Saree Sansar opens the shop separately
Emphasis Supplied PG NO 329 Sri Sanghi also referred to the following statement of Das Raj jain RW 10 a partner of the respondent s firm which according to the Iearned counsel amounts to an admission of the exclusiveness of his possession  The Ice Cream premises can be locked from outside independently
 Sri Sanghi quite understandly placed strong reliance on the report of the Commissioner AW 1 whose report substantiated the appellants  case
So far as the admissions attributed to Das Raj Jain RW 10 is concerned Dr Chitaley would say that the statement of the witness that the premises could be looked from outside indepen dently does not militate against or detract from the internal inter connection between the main premises of Saree Sansar  and Kwality Ice Cream
But the report and evidence of the local Commissioner excluded any possibility of any such internal inter connection
On an appreciation of the evidence the Iearned Rent Controller came to hold Evidence of the petitioners clearly establishes that there is a separate cabin for selling ice cream which is under the control ice cream sellers
The licence deed is only a cloak to cover the real relationship of the respondent with Ms Kwality Restaurant Sector 17E Chandigarh
It is not be lievable at all the respondent the parted with a portion of the premises to Ms Kwality Restaurant Sector 17E Chandigarh without any consideration and just for sake of supplying ice cream to the customers that too after Charging the price
It is all against the natural conduct that the respondent may part with a portion of the premises just for this merely facility The Photographer Kul Rajinder Lal AW K is an independent and truthful witness who took the Photographs at about 9 PM when the business of ice cream was being conducted
The statements of that Witnesses Swatantar Kumar R W 6 Parveen Jain RW7 Saldev Raj RW8 and Krishan Lal RW9 are the statement of the interested persons who had clearly told a lie with a view to depose in favour of the respondent that the photographs were taken PG NO 330 early in the morning
If the photographs were taken earlier in the morning it would have been possible that the shop of the respondent would be open   Emphasis Supplied No other presumption excepting that of subletting can be raised in the circumstances of the case
The respondent Das Raj RW 10 has admitted that there are bigger cloth merchants in Sector 17 than his shop but none of them has opened such a booth of ice cream in their shops
The view of the High Court in substance was that there was conflict between the version of the Commissioner and the state of affairs indicated in the Plans Ext
R 4 which did not support the exclusive and separate nature of the Ice Cream Vendor s possession and that the latter should prevail
But a more careful examination of the context in which ML Sharma RW 7 the Senior Architect who produced Ext
was examined shows that Ext
R 4 was relied upon in rebuttal of and in answer to an altogether different ground ie the ground of unauthorised structural alterations and the alleged damaged caused to the building thereby and to show that the structural alterations had been authorised by the first appellant
It is quite plain that Respondent itself did not seek to rely on this evidence on the point of exclusive possession or lack of it
Not even a suggestion was put to AW 7 or AW 9 to the effect that the structural alterations as evidenced by Ext
R 4 rendered the exclusive possession of Ms Kwality Ice Cream impossible
Norindeed even one out of the 26 grounds in Memorandum of appeal before the appellate Court or the 24 grounds raised in the revision application before the High Court refer to this inference to be drawn from Ext
More importantly
 even Das Raj Jain RW 10 partner of the Respondent firm does not himself claim this import and significance for Ext
No witness stated that the structural alterations were strictly in accordance with the plan Ext
Apparently this was not also the aspect on which Respondent placed reliance before the Courts below
Reliance on the plans to take away the effect of the positive evidence on record was not thereforejustified
The scope of the revisional jurisdiction depends on the language of the statute conferring the revisional jurisdiction
Revisional jurisdiction is only a part of the appellate jurisdiction and cannot be equated with that of a full fledged appeal
Though the revisional power depending PG NO 331 kupon the language of the provision might be wider than revisional power under Section 151 of the Code of Civil Procedure yet a revisional Court is not a second or first appeal
When the findings of fact recorded by the Courts below are supportable on the evidence on record the revisional Court mustindeed be reluctant to embark upon an independent re assessment of the evidence and to supplant a conclusion of its own so long as the evidence on record admitted of and supported the one reached by the Courts below
With respect to the High Court we are afraid the exercise made by it in its revisional jurisdiction incurs the criticism that the concurrent finding of fact of the Courts below could not be dealt and supplanted by a different finding arrived at on an independent re assessment of evidence as was done in this case
We think in the circumstances we should agree with Sri Sanghi that the concurrent finding as to exclusive possession of Ms Kwality Ice Cream was not amenable to reversal in revision
Contentions a and b in our opinion are well taken and would require to be held in appellants favour
On contention c as to the limitation on the powers even of the appellate Court to dislodge finding of facts recorded by the trial court on a re appreciation of oral evidence we think the submissions of Sri Sanghi are not also without substance
The proposition that the appellate Court should not too lightly interfere with the appreciation of oral evidence made by the trial Court particularly based on the credibility of the witnesses whose demeanour the trial Court has had the advantage of observing is too well settled to require reiteration
A clear exposition of the Rule as to what extent the appellate Court should regard itself as bound by the conclusions reached by the trial Court on questions of fact is to be found in the speech of Lord Thankerton in Watt vs Thomas at 487 488 I do not find it necessary to review the many decisions of this House for it seems to me that the principle embodied therein is a simple one and may be stated thus 1
Where a question of fact has been tried by a judge without a jury and there is no question of mis direction of himself by the judge an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trail judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge s conclusion II
The appellate PG NO 332 court may take the view that without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence III
The appellate court either because the reasons given by the trial judge are not satisfactory or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses and the matter will then become at large for the appellate court
 But in cases where there is no question of credibility or reliability of any witness or the question is one of a proper inference to be drawn from proved facts the appellate Court is and should be generally in as good a position to evaluate the evidence as the trial Judge is
Lord Reid in Benmax vs Austin Motor Co Ltd at 422 observed But in cases where there is no question of the credibility or reliability of any witness and in cases where the point in dispute is the proper inference to be drawn from proved facts an appeal court is generally in as good a position to evaluate the evidence as the trial judge and ought not to shrink from that task though it oughtof course
to give weight to his opinion
 In the same case Viscount Simonds indicated the need to keep the distinction between a finding on a specific fact on the one hand and a finding which is an inference from proved fats on the otherclearly distinguished
The limitations on the power of the appellate Court to reappreciate the evidence is clearly confined to the former
That is the distinction between what is perception  and what is evaluation 
Viscount Simonds observed A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent
This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact or to repeat what I have said what is perception what evaluation
 PG NO 333 18
Reference on the point could also usefully be made to ALGoodhart s article at405 in which the Iearned author points out A Judge sitting without a jury must perform dual function
The first function consists in the establishment of the particular facts
This may be described as the perceptive function
It is what you actually perceive by the five senses
It is a datum of experience as distinct from a conclusion
 It is obvious that in almost all cases tried by a judge with out a jury an appellate court which has not had an opportunity of seeing the witnesses must accept his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him  Emphasis Supplied The following is the statement of the same principle in The Supreme Court Practice White Book 1988 Edn
Vol 1
Great weight is due to the decision of a Judge of first instance whenever in a conflict of testimony the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements
But the parties to the cause are nevertheless entitled as well on question of fact as on questions of law to demand the decision of the Court of Appeal and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect p854 55 
Not to have seen witnesses puts appellate Judges in a permanent position of disadvantage against the trial Judge and unless it can be shown that he has failed to use or has palpably misused his advantage for example has failed to observe inconsistencies or indisputable fact or material probabilities ibid
and Yuill Watt vs Thomas 19473 AC 484 the higher Court ought not take the responsibility of reversing conclusions so arrived at PG NO 334 merely as the result of their own comparisons and criticisms of the witnesses and of their view of the probabilities of the case  P 855 
But while the Court of Appeal is always reluctant to reject a finding by a Judge of the specific or primary facts deposed to by the witnesses especially when the finding is based on the credibility or bearing of a witness it is willing to form an independent opinion upon the proper inference to be drawn from it  P 855 A consideration of this aspect would incomplete without a reference to the observations of BK Mukherjea J in Sarju Pershad vs Jwaleshwari Pratap Narain Singh and Others  at 783 which as a succinct statement of the rule can not indeed be bettered  The question for our consideration is undoubtedly one of fact the decision of which depends upon the appreciation of the oral evidence adduced in the case
In such cases the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which the deposed in court
This certainly does not mean that when an appeal lies on facts the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge
The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies the appellate court should not interfere with the finding of the trial Judge on a question of fact
The area in which the question lies in the present case is the area of the perceptive functions of the trial Judge where the possibility of errors of inference does not play a significant role
The question whether the statement of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not is the area in which the well known limitation on the powers of the appellate Court to PG NO 335 reappreciate the evidence falls
The appellate Court if it seeks to reverse those findings of fact must give cogent reasons to demonstrate how the trial Court fell into an obvious error
With respect to the High Court we think that what the High Court did was perhaps even an appellate Court with full fledged appellate jurisdiction would in the circumstances of the present case have felt compelled to abstain from and reluctant to do
Contention c would also require to be upheld
Re Contention d The High Court was of the view that the proceeding of the Commissioner was vitiated by the absence of a notice to the respondent preceding the order appointing the Commissioner
It is true that some High courts had taken the view that no order appointing a local Commissioner under Order 26 CPC could be passed ex parte
See Latchan Naidu and Anr
vs Rama Krishan Ranga Rao Bahadur Bobbili Samasthanam AIR t934 Madras 548
But subsequent pronounce ments of several High Courts including the Madras High Court have inclined to the better view that there might be circumstances which may necessitate and justify even an ex parte order appointing a Commissioner
But the requirements of Rule 9 of Order 26 are construed to apply to a stage after the making of an order appointing the Commissioner
In the present case it is no doubt true that the order dated 32
1975 of the trial court appointing a Commissioner did not in terms direct the parties to appear before the Commissioner
There is this infirmity in the proceedings of the Commissioner
But it is possible to construe the power to appoint a Commissioner to inspect the extant state and nature of structures as not confined to Rule 9 of Order 26 but referable to Rule 7 of Order 39 CPC where the court can dispense with prior notice should it appear to the court that the very object of making of appointment of a Commissioner would be defeated and frustrated by the issue of prior notice
On the scope of Rule 8 of Order 39 as it stood even prior to its amendment High Courts have held that an ex parte order appointing a Commissioner
is permissible
However it is not necessary to pronounce on this question as even the other evidence on record relied upon by the trial Court and the appellate Court support their finding as to the exclusive possession of the Ice cream seller
PG NO 336 21
Dipak Banerjee s case on which strong reliance was placed by Dr Chitaley does not in our opinion advance the case of the Respondent any further
There the question was whether the tenant had sub let two rooms in the premises to a tailor who is stated to have established therein a tailoring business
The tenant denying the sub letting contended that the tailor was allowed to occupy a part of the premises due to pity and charity and that he was sewing in the house without any rent
It would appear that the tenant also did some service for the landlord and the members of his family
The alleged sub tenant not having entered the box the plea of sub letting had come to be accepted
In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged sub tenant and that therefore one of the essential ingredients of a sub lease was a lacking
It was further held that providing of services could not also be construed as consideration for purposes of the Rent Acts and that therefore the second ingredient was also absent
The decision turned on the particular facts of the case
That case could be of no assistance to the respondents
Likewise the decisions in Khalil Ahmed case  where also on the facts of the case it was held that the case of a sub lease had not been made good
Dr Chitaley than urged that there was not even a pleading by the appellant on the point of money consideration for the parting of possession and that no amount of evidence adduced on a point not pleaded could at all be looked into
As a general proposition the submission is unexceptionable but in the present case the point in our opinion is not well taken Appellants specifically pleaded sub letting 
Respondent understood that pleading as to imply all the incidents of  sub letting including the element of Rent  and specifically traversed that plea by denying the existence of considerations
Parties went to trial with full knowledge of the ambit of the case of each other
In the circumstances the pleadings would required to be construed liberally
In Rum Sarup Gupta vs Bishun Narain Inter College  this Court said this of the need to construe pleadings liberally
Sometimes pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question
It is not desirable to place undue PG NO 337 emphasis on form instead the substance of the pleadings should be considered
Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial
Once it is found that in spite of deficiency in the pleadings parties knew the case and find the proceeded or trial on those issues by producing evidence in that event it would not be open to a parry to raise the question of absence of pleadings in appeal Emphasis Supplied After all the parties do not have the foresight of prophets and their lawyers the draftmanship of a Chalmers
 There is no substance in this contention of Dr Chitaley either
The High Court did not deal specifically with the question whether in the circumstances of the case an inference that the parting of the exclusive possession was prompted by monetary consideration could be drawn or not
The High Court did not examine this aspect of the matter as according to it one of the essential ingredients viz of exclusive possession had not been established
lf exclusive possession established and the version of the respondent as to the particular and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in in mind
It is open to the Respondent to rebut this
Such transactions Of sub letting in th guise of licences are in their very nature  clandestine arrangements between the tenant and the sub tenant and there and there can not direct evidence got
It is not
unoften a matter for legitimate inference
The making good a cast of sub letting is of course on the appellants
The burden of burden establishing facts and contentions which support the party who takes the risk of non persuasion
If at the conclusion of the trial a party has failed to establish these to the appropriate standard
he will lose
Though the burden of proof as a matter of law remains constant throughout a trial the evidential burden which rests initially upon a party bearing the legal burden shifts according as the weight of the evidence adduced by the party during the trial
In the circumstances of the case we think that appellants having been forced by the Court s below to have established possession of the Ice Cream Vendor of a part of the demised premises and the explanation of the transaction offered by the respondent PG NO 338 having been found by the Courts below to be unsatisfactory and unacceptable it was not impermissible for the Courts to draw an inference having regard to the ordinary course of human conduct that the transaction must have been entered into for monetary considerations
There is no explanation forth coming from the respondent appropriate to the situation as found
In the result for the foregoing reasons this Appeal is allowed the order of the High Court under Appeal is set aside and the order of eviction passed by the Courts below restored
Having regard to all the circumstances of the case we grant time to the respondent to vacate and yield up the vacant possession till 3 lst December1988
In the circumstances of the case the parties are left to bear their own costs both
here and below
HSK Appeal allowed


Summary:
Section 122 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 bars suits for recovery of possession against the tenant on the ground of non payment of the standard rent until the expiration of one month next after notice in writing
Section 123a provides for passing of a decree for eviction of the tenant who is in arrears for a period of six months and neglects to make payment until the expiration of the notice period provided there is no dispute regarding the standard rent
Section 123b interdicts passing of the decree if the tenant pays or renders in the court the standard rent and permitted increases then due
The appellants were served with a notice under section 122 of the Act terminating the tenancy and calling upon them to pay arrears of rent from 1st September 1971 to 31st December 1972
They did not pay the amount claimed
No dispute was raised regarding the standard rent
The trial court and the appellate court came to the conclusion that there was neglect on the part of the appellants within the meaning of section 123a of the Act meriting a decree for eviction
The High Court dismissed the appeal
In the appeal by special leave it was contended for the appellants that the landlord was not granting receipts that he was not demanding rent but compensation for use and occupation that the landlord was acting mala fide and preventing the tenant from performing his obligation that this was not a case of bona_fide need and that the landlord was affluent and the tenant was poor
Dismissing the appeal PG NO 296 PG NO 297 HELD 11 In view of the provisions of section 123a and b of the Act and in the background of the facts and circumstances of the case the courts below were right
The eviction order had to follow by operation of law
301H D 12 Sub section 3a of section 12 categorically provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in sub section
2 the court shall pass a decree for eviction in any such suit for recovery of possession
301B 13 In the instant case the rent was payable month by month
There was no dispute regarding the amount of standard rent or permitted increases
Such rent or increases were in arrears for a period of six months or more
The tenant had neglected to make payment until the expiration of the period of one month after notice referred to in sub section
The court was bound to pass a decree for eviction in any such suit for recovery of possession
301C Harbanslal Jagmohandas  Anr
vs Prabhudas Shivlal  referred to
Mohan Laxman Hede vs Noormohamed Adam Shaikh AIR 1988 SC
IIII distinguished
The expression court shall pass a decree in sub section 3a of section 12 was substituted for the words court may pass a decree by an amendment passed in 1963 making it mandatory to pass the decree
When the legislature has made its intention clear in specific terms there was no scope for appeal to the spirit of the law and not to the strict letter of the law
302C D