1 (CRA1053/10) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.1053 OF 2010 M/s Big Furn .... Applicant. V/s Mrs Karuna Deepak Chhabria and others ..... Respondents. Mr. P.K. Dhakephalkar, Senior Counsel i/b Mr. Amol P. Mhatre for the Applicant. Mr. V.P. Sawant along with Ms. Cynthia Pareira i/b Rajani Associates for the Respondents. CORAM: V. M. KANADE, J. DATE : 12th August, 2011 P.C.:- 1. Heard the learned Senior Counsel appearing on behalf of the Applicant and the learned Counsel appearing on behalf of the Respondents. 2. Applicant is the original Defendant and the Respondents are the original Plaintiffs. For the sake of convenience parties shall be referred to as “Plaintiffs” and “Defendant”. 3. Plaintiffs filed a suit against Defendant for eviction and 2 (CRA1053/10) seeking possession of the suit premises. It is the case of Plaintiffs that the Plaintiffs had entered into leave and license agreement with the Defendant in respect of the suit premises and, under the said agreement, the premises were given for a period of 33 months for commercial user and pursuant to the said agreement, Defendant was running there his furniture shop. After expiry of the said period of license, Plaintiffs demanded possession. However, when the possession was not handed over, the suit was filed for eviction. Defendant filed his Written Statement and it was contended that the said agreement, though it was termed as leave and license agreement, in fact, was a lease agreement. Trial Court, however, decreed the suit and held that the said agreement was leave and license agreement and did not accept the contention of the Defendant. Appeal which was filed against that judgment and order by the Defendant was dismissed. 4. Mr. Dhakephalkar, the learned Senior Counsel appearing for original Defendant i.e applicant herein, submitted that both the courts below had erred in coming to the conclusion that the said agreement was leave and license agreement. It is submitted that for the purpose of deciding the controversy as to whether the agreement is leave and license agreement or lease agreement four things will have to be taken in to consideration viz (i) exclusive possession, (ii) fixed tenure, (iii) intention of parties & (iv) terms and conditions of the agreement. It is submitted 3 (CRA1053/10) that the said premises was given to the Defendant on proposal which was given by the broker, which itself indicates that the said agreement was intended to be a lease agreement. Secondly, it is submitted that the exclusive possession was given to the Defendant. He submitted that, in fact, admission was given by the Plaintiffs to that effect and he invited my attention to the deposition given by the Plaintiffs in the cross-examination. It is then submitted that the Defendant had spent huge amount of money for renovation of the premises and, thereafter, had taken possession and started running furniture shop in the said premises. It is, therefore, submitted that the huge amount had been spent on renovation only because the said shop was given on long term basis. 5. It is not possible to accept the said submissions made by the learned Senior Counsel appearing on behalf of the Applicant. On perusal of the leave and license agreement, it can be seen that there are specific clauses which clearly indicate that the said agreement was never intended to be the lease agreement and that fact was specifically mentioned in various clauses. There was also a reference to the fact that duplicate keys were to be retained by the licensor and, therefore, it cannot be said that the Defendant had exclusive possession in respect of the said premises. The lower Appellate Court has also taken into consideration the admission given by the Defendant wherein he has admitted that when the agreement was executed before the 4 (CRA1053/10) Registrar, he was aware that the said agreement was meant to be a license. 6. Taking into consideration the aforesaid facts, in my view, no case is made out for interfering with the concurrent finding of facts recorded by both the courts below. Civil Revision Application is, therefore, dismissed. 7. The learned Counsel for the Applicants submits that three months’ time may be given to the Applicant to hand over quiet and vacant possession. Applicant, therefore, is given three months’ time to vacate the premises subject to giving usual undertaking within two weeks from today. 8. Civil Revision Application is accordingly disposed of. (V.M. KANADE, J.) 5 (CRA1053/10)