Case: Smt. M.M. Amonkar and Others Vs. Dr.S.A.Johari

said cabin to the respondent-plaintiff but at that time it could not be within the contemplation of anybody to seek protection against giving premises on licence also, and even so Ext. No. 1 in terms records that respondent-plaintiff was neither a tenant nor a licensee of the suit cabin. Such a double protection was unnecessary as against the L.I.C. but, it was necessary as against the respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached Honourary Surgeon to the Hospital and in no other and that is what Ext. No. 1 says. In our view, the motive suggested by the respondent-plaintiff does not fit in with the situation or state of affairs that existed in May, 1970 and the document really records the true transaction between the parties, namely, that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late Dr. Amonkar that it was simply for the purpose of protecting himself against the L.I.C. and was not to be used against the respondent-plaintiff, the respondent-plaintiff could have obtained from later Dr. Amonkar a writing that effect which he could have preserved for his own safety but no such writing was obtained by him from late Dr. Amonkar and, in our view, if the respondent-plaintiffs version were true that Ext. No. 1 had been obtained on the alleged representation two writings could have been executed and preserved by each for his own safety but this was not done. If, therefore, respondent-plaintiffs suggestion as to why Ext. No. 1 was obtained by late Dr. Amonkar from him is not believable-and for the reasons indicated above it is not-the respondent-plaintiff must be held bound by the writing Ext. No. 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannot be accepted.It may be stated that the main reason why the High Court felt that Ext. No. 1 did not reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant-defendants to show that actually medical services were rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On this point there was merely the respondent-plaintiffs word as against the testimony of defendant No. 2 and Dr. Rawalia. Respondent-plaintiff claimed that he had not rendered any services to Dr. Amonkar Hospital as an attached Honourary Surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the Hospital. Leaving aside the High Courts 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 Courts view given evidence in a responsible and restrained manner-should not have been accepted on the point. Defendant No. 2 had clearly stated in his evidence that consultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was consulted in his capacity as an Honorary Surgeon attached to the Hospital. It is true that no documentary record of such consultations was produced but whether any record of consultations would be maintained or not would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such consultations and the trial such record may not have been preserved. In our view defendant No. 2s evidence in this behalf need not have been rejected simply because no record of such consultations 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. Amonkar Hospital for performing operations on his private patients and though there is a controversy as to whether such user of the Operation Theatre was free of charge or on payment, in our view such user of Operation Theatre together with the facilities attached thereto would not have been permitted 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 t ill January 1973 (when the respondent-plaintiff obtained an interim injunction) the respondent plaintiff had no servant of his own attached to the suit cabin but he was getting the services from the members of the Hospital staff in the matter of sweeping, cleaning and dusting of his cabin, receiving his patients in the common waiting room and ushering them into his cabin for which no separate payment was being made by him. Were he an independent licensee of the suit cabin and not attached to the Hospital such services would not have been made available to him free of charge.In our view the aforesaid broad features emerging from the evidence on record clearly support the appellants-defendants case that the user of the suit cabin was allowed to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital. Such being our conclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. We are clearly of the view that the High Court was not right in reversing the concurrent finding of fact recorded by both the courts below and even on merits the High Court judgment cannot be sustained. Th

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Though the aforesaid conclusion of ours would be sufficient to dispose of the appeals, even on merits we feel that the broad features emerging from the evidence on record make it difficult to accept the respondent-plaintiffs case that the user of the suit cabin was permitted to him on leave and licence basis as claimed by him. Admittedly, Dr. Amonkar Hospital was never exclusively a Maternity and Gynecological Hospital and had a Nursing Home Department where general operations were undertaken and as such attachment of couple of doctors as Honourary Surgeons to it would be most natural and since at the material time both the senior Dr. Amonkar (since deceased) and the junior Dr. Amonkar (defendant No. 2) were on account of their ill health, unable to work with full vigour, with only doctors (Dr. Miss Usha Amonkar and Dr. Rawalia) in attendance the respondent-plaintiffs attachment as Honourary Surgeon to it for temporary duration till Dr. (Mrs.) Gaitonde returned from Calcutta, could not be said to be unnecessary as opined by the High Court but was more probable. Even the High Court has observed that late Dr. Amonkar had obliged the respondent-plaintiff by accommodating him in the suit cabin temporarily when he was suddenly made to leave his premises on the third floor of the very building and that the respondent-plaintiff had taken advantage of the gesture shown to him by late Dr. Amonkar as Dr. (Mrs.) Gaitonde was away ateven the High Court has accepted the position that the user of the suit cabin became available to the respondent-plaintiff as a result of his direct approach to late Dr. Amonkar but through the intervention and good offices of Dr. Rawalia, and he has fully supported the Appellants-Defendants case that such user was allowed to the respondent-plaintiff on the same terms on which he had been permitted the user of his ca bin in that Hospital, namely, because of attachment as Honourary Surgeon to Dr. Amonkar Hospital. But Dr. Rawalias evidence has been discarded by the High Court for reasons which are, in our view, not sound. Apart from some minor contradictions (which were really omissions) that appeared in his evidence in light of the averments made by him 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 family and that he had displayed an attitude of being ever willing to sign any affidavit or to swear to anything to help whom he had come to help; for instance he had gone t o the extent of saying "so far I am not asked to go out but I am prepared to go as and when they will tell me to get out", which showed that he had identified himself with Amonkars. In our view these aspects would not be good reasons for discarding his evidence. True, some of his answers do show that he was having close ties with the Amonkar family but this is not unnatural if it is borne in mind that he has been working with them in that Hospital since 1954 and the mere fact that he has stated that he was prepared to go whenever Amonkars would ask him to go would not show that there was any private or secret-understanding between him and Amonkars as was sought to be suggested by counsel for the respondent- plaintiff. Since he was a signatory to writing Exh. No. 2 all that he wanted to convery was that his user of the cabin was because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital and as such his right to occupy the cabin would come to an end as and when his attachment would cease, that is to say, as and when Amonkars would ask him to go. Far from showing any interestedness in the Amonkars his aforesaid statement was an admission against his own interest, as it exposed him to imminent risk of eviction, and as such deserved commendation. Honouring ones word has become a rare virtue these 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 sticking to the arrangement to which he was a signatory and for not behaving in the manner as respondent-plaintiff has done, would be a travesty of justice.Thirdly, turning to the documentary evidence , it must be observed that the three or four receipt produced by the respondent-plaintiff showing monthly payments made by him would be of no avail because the nature or the character of the payment, whether it was by way of compensation or to wards ratable expenses, has no where been indicated in any of them. But so far as Exh. No. 1 is concerned it is clear that this document in terms indicates that the respondent- plaintiff was permitted to use the suit cabin not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital and that it contains a categorical admission on his part that he was neither a tenant nor a licensee thereof. In cross-examination respondent-plaintiff admitted that he had signed this document after fully understanding the contents thereof. If that be so, his oral testimony which runs-counter to the document cannot obviously be accepted unless, of course, the document is shown to have been obtain ed by late Dr. Amonkar from him for the purpose of avoiding a possible objection that might be raised by the L.I.C. and was not to be acted up.. ones suggested by the respondent-plaintiff. As regards the motive or purpose for which the document was said to have been obtained there are two circumstances which militate against it. In the first place at the material time that is in May 1970 unlawful subletting of premises was a ground for eviction and not the giving it on leave and licence basis and late Dr. Amonkar might have faced some difficulty from his own landlord, namely, L.I.C. if he had sublet the said cabin to the respondent-plaintiff but at that time it could not be within the contemplation of anybody to seek protection against giving premises on licence also, and even so Ext. No. 1 in terms records that respondent-plaintiff was neither a tenant nor a licensee of the suit cabin. Such a double protection was unnecessary as against the L.I.C. but, it was necessary as against the respondent-plaintiff to whom late Dr. Amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached Honourary Surgeon to the Hospital and in no other and that is what Ext. No. 1 says. In our view, the motive suggested by the respondent-plaintiff does not fit in with the situation or state of affairs that existed in May, 1970 and the document really records the true transaction between the parties, namely, that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital. Secondly, if Ext. No. 1 was not to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late Dr. Amonkar that it was simply for the purpose of protecting himself against the L.I.C. and was not to be used against the respondent-plaintiff, the respondent-plaintiff could have obtained from later Dr. Amonkar a writing that effect which he could have preserved for his own safety but no such writing was obtained by him from late Dr. Amonkar and, in our view, if the respondent-plaintiffs version were true that Ext. No. 1 had been obtained on the alleged representation two writings could have been executed and preserved by each for his own safety but this was not done. If, therefore, respondent-plaintiffs suggestion as to why Ext. No. 1 was obtained by late Dr. Amonkar from him is not believable-and for the reasons indicated above it is not-the respondent-plaintiff must be held bound by the writing Ext. No. 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannot be accepted.It may be stated that the main reason why the High Court felt that Ext. No. 1 did not reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant-defendants to show that actually medical services were rendered by the respondent-plaintiff to Dr. Amonkar Hospital. On this point there was merely the respondent-plaintiffs word as against the testimony of defendant No. 2 and Dr. Rawalia. Respondent-plaintiff claimed that he had not rendered any services to Dr. Amonkar Hospital as an attached Honourary Surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the Hospital. Leaving aside the High Courts 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 Courts view given evidence in a responsible and restrained manner-should not have been accepted on the point. Defendant No. 2 had clearly stated in his evidence that consultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was consulted in his capacity as an Honorary Surgeon attached to the Hospital. It is true that no documentary record of such consultations was produced but whether any record of consultations would be maintained or not would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such consultations and the trial such record may not have been preserved. In our view defendant No. 2s evidence in this behalf need not have been rejected simply because no record of such consultations 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. Amonkar Hospital for performing operations on his private patients and though there is a controversy as to whether such user of the Operation Theatre was free of charge or on payment, in our view such user of Operation Theatre together with the facilities attached thereto would not have been permitted 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 t ill January 1973 (when the respondent-plaintiff obtained an interim injunction) the respondent plaintiff had no servant of his own attached to the suit cabin but he was getting the services from the members of the Hospital staff in the matter of sweeping, cleaning and dusting of his cabin, receiving his patients in the common waiting room and ushering them into his cabin for which no separate payment was being made by him. Were he an independent licensee of the suit cabin and not attached to the Hospital such services would not have been made available to him free of charge.In our view the aforesaid broad features emerging from the evidence on record clearly support the appellants-defendants case that the user of the suit cabin was allowed to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital. Such being our conclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. We are clearly of the view that the High Court was not right in reversing the concurrent finding of fact recorded by both the courts below and even on merits the High Court judgment cannot be sustained.