TMI Blog2001 (3) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... ency Small Cause Courts Act ( Act for short) and prayed for ejectment of the respondent and claimed possession of the suit premises comprising of three rooms, kitchen and bathroom located on 1st floor of Pruthi Building situated at 196, Prabhat Colony, Santacruz (East), Bombay 400 055. 4. On being noticed, the respondent appeared. He filed his defence inter alia raising the plea of tenancy. The Trial Judge, on the basis of rival pleadings, framed preliminary issue as required under section 42(A) of the Act reading as under : Does respondent prove that he is the tenant of the applicant in respect of the suit premises protected under the provision of Bombay Rents, Hotel and Lodging House Rates Control Act? 5. On the basis of the above issue the parties were put to Trial. The evidence was recorded by the Trial Court. The Trial Judge aide his judgment and order dated 13th December, 1974 answered the above preliminary issue in negative and in favour of the petitioner herein, holding that the respondent was not a tenant of the suit premises but was a mere licensee. 6. The respondent herein preferred an appeal against the aforesaid judgment to the Small Causes Court, Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by ₹ 15/- i.e. ₹ 185/- per month. The Appellate Court after noticing the above peculiar characteristics of the document in question reached to the conclusion that the document executed by the parties at the time when the respondent was inducted in the suit premises was nothing but a deed of lease and not an agreement of leave and licence as propounded by the petitioner. It was held that the circumstances and evidence on record were sufficient to establish the exclusive possession of the respondent. It was also held that considering the monthly payment of monetary consideration and duration prescribed for use and occupation coupled with exclusive possession of the disputed premises, the intention of the parties was to create tenancy, an interest in favour of the respondent in respect of the disputed premises. The Lower Appellate Court sought to draw credence to its findings from one more document which was available on record, namely, the covering letter dated 2nd March, 1971, sent by the respondent alongwith cheque for ₹ 1,000/ representing the charges for the period from October, 1970 to February, 1971. The petitioner neither encashed the cheque nor replie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l appearing for the petitioner took me through the oral as well as documentary evidence and pointed out the demerits of the findings recorded by the Lower Appellate Court. He tried his best to highlight the merits of the finding recorded by the Trial Judge. The document, to which my attention was drawn, is the extract of Exh. A, the characteristics of which are already referred to in the opening part of the judgment. The said document, though in a letter form, not only refers to a grant on leave and licence basis at the rate of ₹ 200/- per month inclusive of water charges but promises to pay rent regularly on 10th of each calender month. The mode of payment of rent and the duration thereof followed by an assurance and promise to pay the rent regularly up to 10th of each calender month unmistakably indicate that monthly rental of the premises was ₹ 200/- inclusive of water charges to be paid regularly on or before 10th of each calender month. While recording the payment of advance amount, it has been described as Vent' and immediately in the next clause the duration of the leave and licence is shown to be of 11 months with one more option to renew for further period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unding circumstances are also consistent with the deed being one of lease. The notice to vacate the premises was served on the respondent after several months of expiry of the terms of the agreement. It is not suggested on behalf of the respondent that there was any relationship between the parties or that they were friends which induced the petitioner to allow the respondent to occupy the premises. The realisation of the charges for use and occupation of the premises was the sole consideration of the transaction. 18. I may point out that both the Courts below have also failed to consider and take into account one more important factor is that the application for ejectment filed in the Trial Court was valued at ₹ 2,400/ for the purpose of court fees and jurisdiction. Obviously, the said valuation was done in pursuance of clause (xii) of section 6 of the Bombay Court Fees Act, which specifically deals with the valuation of the suits between the landlord and tenant. The valuation for the court fee and jurisdiction done also indicate that all the while the parties were labouring under the bona fide impression that the dispute between the parties was that of a landlord and ten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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