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

This unfortunate litigation between eminent medical practitioners of Bombay has been hotly contested before us since it relates to professional accommodation of which there is great dearth in that city. The accommodation in question consists of a small cabin admeasuring 15 -6"x11-2" (approximately 175 sq. ft) which is a part of the premises of Dr. Amonkar Hospital located on the fourth floor of Bombay Mutual Terrace at 534, Sandhurst Bridge, Bombay, of which one Dr. M.D. Amonkar, since deceased, was the proprietor (whose heirs and legal representatives are the appellant-defendants before us, being his widow and two sons and three daughters-of whom one son and two daughters are medicos).Johari (the respondent-plaintiff) an M.B.B.S. of Bombay, F.R.C.S. of London and Edinburough and Honourary Surgeon attached to G.T. Hospital and Bombay Hospital, filed a suit (R.A. Suit No. 779/2893 of 1973) in the Small Causes Court at Bombay seeking a declaration that he was a "protected licensee.(having become a deemed tenant) of the suit premises under s. 15A of the Bombay Rent Act (No. 57 of 1947) as amended by the Maharashtra Act XVII of 1973 and for injunction restraining the appellant-defendants from taking forcible possession of the suit premises and or disturbing or interfering with his use and enjoyment thereof otherwise than in due course of law. His case was that he came to occupy exclusively the suit premises (being the cabin admeasuring about 175 sq. ft. with the facility of using the adjacent common waiting room together with the facility of water and electricity) on 1st May, 1970 on leave. and licence basis under an oral agreement with late Dr. Amonkar on payment of monthly compensation of Rs. 201 for doing his private consultation surgical practice. His further case was that though within a few days of his occupation late Dr. Amonkar had obtained from him a writing purporting to state that he was attached as an Honourary Surgeon to Dr. Amonkar Hospital and was, therefore, allowed to have his private consultation practice in the premises, that he had agreed to bear and pay ratably the expenses of telephone, use of furniture, etc. and that he was neither a tenant nor a licensee, the said writing had been obtained from him merely as a safeguard for Dr. Amonkar against a possible objection that might be raised by the Life Insurance Corporation the landlords of the building, and was not to be acted upon. According to him, he had cordial relations with late Dr. Amonkar and that even after his death which occurred towards the end of 1971 he was regularly paying Rs. 201/- per month to his heirs till January 1973 but since threats of forcible dispossession were held out to him by the appellant- defendants, particularly by appellant-defendant No. 3 Dr. Suman Gaitondey (the married daughter of the deceased) on her return to Bombay from Calcutta, and since by a notice dated 20th March, 1973 he was informed that his attachment as honorary Surgeon was no longer required with effect from 1-4-1973 and that he should make his own arrangements for his private consultation, he was forced to file the suit seeking reliefs of a declaration and injunction mentioned above.The suit was resisted by the appellant-defendants on three grounds: (a) that the cabin was never given to the respondent-plaintiff on leave and licence basis as alleged by him, that he was never in exclusive us e and occupation thereof but the user of the cabin was given to him because of his attachment as Honourary Surgeon to Dr. Amonkar Hospital, through the good offices of one Dr. Rawalia; that the writing on the stamp paper of Rs. 1.50 bearing date 4th May, 1970 signed by the respondent- plaintiff reflected the true nature and character of the arrangement between the parties; it was emphatically denied that the said writing was obtained by late Dr. Amonkar for the purpose or motive suggested by the respondent-plaintiff or was not intended to be acted upon, (b) that the cabin in question was not "premises" within the meaning of s. 5 (8) (b) of the Act, inasmuch as the same could not be said to have been given on licence separately because the respondent-plaintiff was permitted the user there of only for 2-1/2 hrs. in the evening on week days between 5.00 p.m. to 7.30 p.m. and for the rest of the time it was being used by the hospital staff and that one of the keys of that cabin always remained with the staff of the hospital and hence the plaintiff was not entitled to any protection of the Rent Act; and (c) that the cabin in question being admittedly a room in the hospital fell within the exclusionary par t of the definition of the licensee given in s. 5 (4A) and as such was outside the protection conferred on licensees by s. 15A of themay be stated that while the aforesaid suit was pending the appellant-defendants on their part filed an eviction petition being ejectment Application No. 259/E of 1976 against the plaintiff respondent seeking his eviction from the suit premises under s. 41 of the Presidency Small Causes Courts Act on the ground that the plaintiffs right to occupy the suit cabin had come to an end alongwith the termination of his attachment as Honourary Surgeon to Dr. Amonkar Hospital and the plaintiff resisted the said eviction on the ground that he was a protected licensee under the Bomb ay Rent Act as amended by the Maharashtra Act XVII of 1973 and was, therefore, not liable to be evicted therefrom. The two proceedings were heard together and common evidence was recorded in the declaratory suit being R.A. No. 779/2893 of 1973.It is clear that on the basis of the rival pleadings of the two parties in the two proceedings before the Small Causes Court principally three issues arose for determination, namely, (1) what was the true nature of the arrangement between the parties regarding the user of the suit cabin by the plaintiff, whether the plaintiffs user of the cabin was on leave and licence basis on payment of monthly compensation or it was on account of his attachment as Honourary Surgeon to Dr. Amonkar Hospital? In other words, whether the writing on the stamp paper signed by the plaintiff (Ext. No. 1) was a genuine document reflecting the true nature of the arrangement between the parties? (2) whether the suit cabin was n ot premises within the meaning of s. 5 (8)(b) of the Act? and (3) whether the suit cabin was a room in the hospital falling within the exclusionary part of the definition of licensee under 5 (4A) and, therefore, outside the protection contemplated by s. 15A of the Act? It is obvious that the first issue raised purely a question of fact, the determination whereof depended on appreciation of the evidence led by the parties before the Court while the other two issues raised questions of law-rather mixed questions of law andthe trial parties led oral as well as documentary evidence on all the issues arising in the case. The evidence on the side of the respondent-plaintiff consisted only of his oral testimony, during the course of which he asserted that the user of the cabin had been given to him by late Dr. Amonkar on leave and licence basis on payment of monthly compensation. On the side of the appellant-defendants the oral testimony consisted o f depositions of two witnesses (i) Dr. D.M. Amonkar (defendant No. 2) and (ii) Dr. Rawalia and the documentary evidence consisted of two writings obtained by late Dr. Amonkar-one from the respondent-plaintiff and the other from Dr. Rawalia. Ext. No . 1 is a writing on a stamp paper of Rs. 1.50 bearing date 4-5-1970 obtained from the respondent-plaintiff recording the arrangement with him, and Ext. No. 2 is a writing on a stamp paper dt, 23-4-1962 signed by Dr. Rawalia recording the arrangement with him. Both Exts. No. 1 and No. 2 are identical in terms and appears that long before respondent-plaintiff was allowed the use of the suit cabin, Dr. Rawalia had been allowed the use of another cabin in the hospital premises by late Dr. Amonkar on the same terms. Each writing signed by the occupant in terms states, "I am an Hon. Surgeon to Dr. Amonkar Hospital. I am allowed to practice may, private consultation in the premises. I am neither licensee nor subtenant. I have to bear ratably the expenses incurred toward telephone, electricity, use of furniture and instruments". Dr. Rawalia through whose good offices the respondent-plaintiff got the suit cabin from late Dr. Amonkar fully supported the appellant defendants case that late Dr. Amonkar had permitted the respondent-plaintiff to make use of the suit cabin because of his-attachment as Honorary Surgeon to Dr. Amonkar Hospital. On an appreciation of the oral and documentary evidence and the surrounding circumstances, the trial Court came to the conclusion that the user of the suit cabin had been permitted to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital and that Ext. No. 1 which was signed by him after fully realising its implications, was a genuine writing reflecting the true nature of the arrangement between the parties and as such the plaintiff was not entitled to the protection of s. 15A of the Rent Act and with the termination of his attachment as Honourary Surgeon to Dr. Amonkar Hospital his right to occupy the suit cabin came to end. The trial Court also decided the legal issues in appellant-defendants favour with the result that the respondent-plaintiffs declaratory suit was dismissed and the ejectment application of the appellant-defendants was decreed. In appeal preferred by the respondent-plaintiff the Appellate Bench of the Small Causes Court on a re- appraisal of the entire material on record confirmed the findings of the trial Court on the factual issue as also on the legal issues. The appeal was dismissed and the ejectment decree passed by the Trial Court in favour of the appellant- defendants was confirmedAgainst the dismissal of his declaratory suit and the ejectment decree passed in E.A. No. 259/F of 1976 the respondent-plaintiff approached the High Court under Art, 227 of the Constitution by preferring two proceedings- Special Civil Application No. 30 of 1979 and Writ Petition No-115 of 1979 both of which were disposed of by the High Court by common judgment rendered on 18th August, 1980. The High Court was of the opinion that ther e were two disturbing features revealed in the respective proccedings/JUDGMENTs of the Courts below which were suggestive of non-judicial approach, some bias and partiality (in favour of the appellant-defendants and against the respondent-p laintiff) on their part which necessitated a full and unrestricted exercise of its power of superintendence by going to the extent of re-appreciating the evidence in depth as if it were a first Appellate Court; and after briefly indicating wh at it felt were the two disturbing features, the High Court re-appreciated the entire evidence fully and in depth and came to the conclusion that the user of the suit cabin was given to the respondent-plaintiff on leave and licence basis and the writing Ext. No. 1 did not represent the real state of affairs as far as the respondent-plaintiffs right to use the suit cabin was concerned and that the same had been taken by late Dr. Amonkar only for his protection against his own landlord, namely, Life Insurance Corporation. The High Court also negatived the findings recorded by the Courts below on the two legal issues and held that the suit cabin was "premises" within the meaning of s. 5 (8) (b) of the Bombay Rent Act, the same having been given on licence `separately to the respondent-plaintiff and that the suit cabin was not `a room in the hospital and as such the respondent-plaintiff could be and was a `protected licensee entitled to claim protection under s. 15A of the Act. The High Courts interference with the concurrent finding of fact recorded by the two Courts below on the factual issue also its conclusions on the two legal issues are assailed before us in the instant appeals.

Reasoning: 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.