1 FH cra.20.06 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 20 OF 2006 Smt. Poonam V. Matta. ... Applicant Vs. Ramesh Daulatram Harjani and ors. ... Respondents -------- Mr. R.S.Apte, Senior Counsel i/b M/s. Chitnis Vaithy and Company for the Applicant. Mr. Sudarshan Shinghrani for Respondent Nos.1 and 2. -------- CORAM : A.S.OKA, J. DATE : 23 rd November, 2010. JUDGMENT : 1 This is a revision application under Section 31-F of the Bombay Rents Hotels & Lodging Houses Rates Control Act, 1947 (hereinafter referred to as “the said Act”). The revision application takes exception to the order passed by the Competent Authority of eviction of the Applicant by exercising power under Section 13(A)(2) of the said Act. 2 The premises in dispute is a residential flat. In the application for eviction under Section 13(A)(2) filed by 1 st and 2 nd respondents, it is stated that by the leave and licence agreement dated 1 st August, 1992, the Applicant was allowed to use and occupy the suit flat. It is contended that, as per the renewal clause in the agreement, the 2 FH cra.20.06 same was renewed by letter dated 26 th May, 1993 on the same terms and conditions for the period of 11 months. The extended period expired on 31 st May, 1994. The 1 st and 2 nd respondents issued legal notice dated 5 th March, 1994 calling upon the Applicant to vacate the suit flat on or before 1 st June, 1994. Reliance has been placed on further letter dated 23 rd January, 1995 sent by the 1 st and 2 nd respondents calling upon the Applicant to vacate the said flat. As the premises was not vacated, the said application for eviction was filed. 3 An application was filed by the Applicant under sub-section 4(a) of Section 31(E) of the said Act seeking grant of leave to defend the application for eviction. The Competent Authority rejected the said application and proceeded to pass an order of eviction. The Applicant preferred a revision application in this Court for challenging order of eviction. By judgment and order dated 29 th August, 2005, the order of eviction was set aside and the matter was remanded to Competent Authority. The Applicant was permitted to defend the application for eviction. Thereafter, the Applicant filed a written statement. The parties adduced evidence and thereafter, order of eviction has passed against the Applicant. 4 The learned senior counsel appearing for the Applicant invited the attention of the Court to the written statement filed by the Applicant and in particular, paragraph No.2 thereof. He submitted that a 3 FH cra.20.06 specific contention was raised in the said paragraph that 1 st and 2 nd respondents have agreed to sell the suit flat to the Applicant. He pointed out that it was specifically stated that a sum of Rs.2,00,000/- was deposited by the Applicant with the 1 st and 2 nd respondents. He submitted that Applicant agreed to purchase the suit flat for consideration of Rs.10,80,000/-, but the said case has been erroneously discarded by the Competent Authority by holding that there was no pleading regarding agreement for sale. The learned senior counsel pointed out that admittedly on 13 th August, 1991, 1 st and 2 respondents received a sum of Rs.1,00,000/- in cash from the Applicant. He pointed out that a receipt for the said payment was executed by 1 st respondent. He submitted that the receipt of a sum of Rs.1,00,000/- by the 1 st and 2 nd respondents from the Applicant by two cheques in the sum of Rs.50,000/- on 13 th August, 1991 is an admitted position. Even a receipt of a sum of Rs.1,00,000/- is an admitted position. He submitted that though the agreement for leave and licence has been admitted, in view of the admission of receipt of cash amount of Rs.1,00,000/- by the 1 st respondent, there was an evidence to show that the real transaction was different from the transaction reflected from the leave and licence agreement. He submitted that when there is enough evidence on record to show that the transaction is not a transaction which is reflected from the leave and licence agreement, the evidence of the Applicant as regards the existence of the other transaction cannot be discarded. He submitted that on the basis of explanation (b) to Section 13(A)(2) of the said Act, what is made 4 FH cra.20.06 conclusive is what is stated in the leave and licence agreement. The explanation does not preclude the Applicant for establishing the fact that there was some other transaction between the parties on the basis of which the Applicant was placed in possession. It is submitted that notwithstanding explanation (b), the Applicant can always establish that she was in possession in a different capacity and in the facts of the present case, the other agreement between the parties has been established. He urged that if the evidence of the existence of another transaction is to be discarded on the basis of explanation (b), the said explanation will become unconsitutional and therefore, an interpretation will have to be put to explanation (b), which will save the said clause (b). He submitted that in any event, the further extension of the licence is not on the basis of the leave and licence Agreement, but on the basis of letters dated 26 th May, 1993 and 24 th June, 1993. Lastly, he pointed out that the order of remand passed by this Court in the earlier revision application holds that the issue whether agreement dated 1 st August, 1992 was an agreement of tenancy or a licence will have to be decided. He submitted that the issue has not been decided by the Competent Authority. 5 I have given careful consideration to the submissions. Notwithstanding the explanation (b) to Section 13(A)(2), it must to be stated here that in the light of issue No.4, the Competent Authority has gone into merits of the contentions raised by the Applicant that there was 5 FH cra.20.06 an agreement for sale. 6 Before adverting to the effect of explanation (b), it must be noted that the application for eviction was based on agreement of leave and licence dated 1 st August, 1992, the execution of which was admitted by the Applicant. Even the subsequent renewal is expressly based on the two letters of the Applicant on the basis of the leave and licence Agreement. Apart from the fact that order of remand passed by this Court does not decide any issue between the parties, the contention noted by this Court raised by the Applicant was that the agreement dated 1 st August, 1992 was an agreement of tenancy. The relevant portion of the order of this Court reads thus: “.... the main issue was whether the agreement dated 1st August 1992 was an agreement of tenancy or the licence and this could have been more efficaciously done had both the parties been called upon to lead the evidence. It is evident that the Competent Authority has hastily rejected the application moved by the applicant seeking leave to defend and, consequently, the reasoning given in support of the order of eviction is indefensible. The terms of the agreement dated 1st August 1992 could not have been relied upon unless the agreement was proved at least by the applicant through his oral deposition. The occupant in her written statement had stated that the agreement was a sham and a bogus document and it was obtained only by way of a cover up. She alleged that the real intention behind executing the said agreement was different.” 7 Thus, it seems that a plea was raised before this Court that 6 FH cra.20.06 the real nature of the transaction between the parties was creation of tenancy. As far as plea of agreement for sale is concerned, the relevant pleading is in paragraph No.2 of the written statement, which reads thus: “2. Without prejudice to the above submission the Respondent says that the agreement between the Applicants and the Respondent are bogus and sham and not intended to be acted upon. The Applicants had obtained signatures on undertaking by committing misrepresentation. It was assured to her that she may be a permanent occupant and stay in the premises as long as she desired, on payment of rent of Rs.3000/- p.m. till suit premises is sold and registered in her name by the said society after transfer of shares presently held by the Applicants in her name after fulfillment of due formalities. The respondent had also deposited Rs.2,00,000/- with the applicants which are still with them and they are not paying any interest thereon as this amount was adjustable in the sale consideration by the said society after transfer of share held by applicants in her name.” 8 In the written statement, no material particulars such as date on which terms and conditions of the alleged sale were agreed upon, the alleged terms and conditions and even the consideration agreed have not been set out. In paragraph No.9 of the written statement, the execution of the agreement of leave and licence was admitted. The relevant portion of paragraph No.9 reads thus: “With reference to para No.3 of the application the Respondent denies that the Respondent has executed the agreement with intent to execute it. the applicants agreed to let out the application premises to the Respondent only on executing the agreement as show in Exhibit-A as their success or in title. The applicants stated that the 7 FH cra.20.06 Respondent should not worry about the agreement being styled as leave and licence. So the agreement is bogus and sham which cannot be acted upon.” 9 Thus what is pleaded is that 1 st and 2 nd respondents had agreed to let out the suit flat to the Applicant and the agreement of leave and licence was sham and bogus which cannot be acted upon. In the evidence, the Applicant came out with the different version that there was an agreement for sale and price was agreed to be Rs.10,80,000/-. The Applicant came out with a case in her evidence that she alongwith her husband on 13 th August, 1991 in the afternoon approached an Estate Agent at Andheri (West), Mumbai as she was looking for a premises on tenancy basis. Thereafter, she has proceeded to state that the suit flat was let out to her at monthly rent of Rs.3,000/- till execution and completion of sale at the price of Rs.10,80,000/-. However, the date of the alleged Agreement for sale is not pleaded in the written statement. The most important fact is that the Applicant accepted that prior to the agreement dated 1 st August, 1992, there was an agreement of leave and licence dated 19 th August, 1991 executed by and between the parties in respect of the suit flat. The said agreement shows that a sum of Rs. 1,00,000/- was paid by the Applicant as a security deposit by two cheques. The licence period provided under the first agreement expired on 31 st July, 1992 and second agreement on the basis of which application for eviction is filed was executed on 1 st August, 1992. On perusal of both the agreements, the learned Competent Authority has 8 FH cra.20.06 recorded a finding that the terms and conditions of both the agreements are the same and that security deposit amount paid by the Applicant at the time of execution of the 1 st agreement was carried forward. Thus, the admitted position is that the entry of the Applicant in the suit flat was on the basis of an agreement of leave and licence dated 19 th August, 1991. Assuming that the case made out in the evidence by the Applicant is true, it is not her case that the first agreement dated 19 th August, 1991 was bogus or was not to be acted upon. Thus, the entry of the Applicant in the suit premises is on the basis of a leave and licence agreement. Apart from that, the evidence of the Applicant has been tested by the Competent Authority by holding that improvements were made in the evidence and that the pleading regarding agreement for sale was very vague. The Applicant never pleaded that a sum of Rs.1,00,000/- was paid in cash by her. The receipt in writing of cash payment of Rs. 1,00,000/- placed on record discloses that it was accepted as a friendly loan. 10 There is another important aspect of the matter. The case made out by the Applicant was that at the time of negotiations, her husband was present. In the cross-examination, she accepted that whenever any document was prepared, her husband used to read over and explain the said document to her before she signed the same. Thus, the Applicant was fully aware of contents of both the leave and licence Agreements. 9 FH cra.20.06 11 Thus on facts, the Competent Authority on appreciation of evidence has disbelieved the case of existence of agreement for sale. 12 Section 13 (A) (2) reads thus: “13A2. Landlord entitled to recover possession of premises given on licence on expiry of licence. (1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession for such premises from a licence, on the expiry of the period of licence by making an application to the Competent Authority; and the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee. (2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence. (3) The Competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence. Explanation. - For the purposes of this section, - (a) the expression “landlord” does not include a tenant or a sub-tenant who has given premises on licence; 10 FH cra.20.06 (b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein.” 13 This Court has considered the scope of clause (b) of the explanation. The scope of the explanation has been considered in the light of the law laid down by the Apex Court in the case of Smt. Somawanti and others Vs. The State of Punjab and others (AIR 1963 SC 151). There are series of decisions of this Court including a decision of this Court in the case of Swami Attah @ Rapheal Alfandary Vs. Mrs. Thrity Poonawalla [1996(1) Mah.L.J. 603]. In the said decision, the learned Single Judge of this Court relied on what is held in the case of Smt. Somawanti (supra). The Apex Court held thus: ““Since evidence means and includes all statements which the Court permits or requires to be made when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that that fact can be proved either by that evidence or by some other evidence which the Court permits or requires to be advanced. Where such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exists or not. Where, on the other hand, evidence which is made conclusive is adduced, the Court has no option but to hold that the fact exists. Statutes may use the expression ‘conclusive proof’ where the object is to make a fact non-justiciable. But the legislature may use some other expression such as ‘conclusive evidence’ for achieving the same result. There is thus no difference between the effect of the expression ‘conclusive evidence’ from that of ‘conclusive proof’, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.”” (underline supplied) 11 FH cra.20.06 14 This Court in the case of Swami Attah (supra) held that explanation (b) prescribes a special rule of evidence which provides that an Agreement of licence in writing should be conclusive evidence of the facts stated therein. It was held that in view of the said special rule, it is not permissible for the Court to go beyond the Agreement to find the real intention of the parties and to arrive at a conclusion that the transaction is not of leave and licence. 15 In the circumstances, interpretation sought to be put by the learned senior counsel appearing for the Applicant to the explanation (b) cannot be accepted. 16 There is no merit in the revision application and the same is accordingly dismissed with no order as to costs. 17 The learned counsel appearing for the Applicant makes a request for continuation of interim relief. The said request is opposed by the learned counsel appearing for the contesting respondents. Interim relief granted on 31 st January, 2006 will continue to operate by a period of twelve weeks from today. [ A.S.OKA, J ]