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1997(9) Supreme 438
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Surendra Kumar Jain -Appellant
versus
Royce Pereira -Respondent
Civil Appeal Nos. 7782-83 of 1997
(Arising out of SLP (C) Nos. 11320-11321 of 1997)
Decided on 19-11-1997
Counsel for the Parties :
For the Appellant : Mrs. Indra Jaising, Sr. Advocate, Bharat Sangal, N.P. Midha, Advocates.
For the Respondent : V.A. Bobde, Sr. Advocate, S.D. Mudaliar, U.U. Lalit Advocates.
Held : The words in which the licensor resides which are found in the definition of paying guest in section 5(6A) are not found in the definition of licensee under section 5(4A) which uses the words who is in occupation of the premises or such part , and those words are not found in the definition of paying guest in section 5(6A) though the words given on licence are found in the definition of paying guest. If a person is a paying guest and thereby excluded from the definition of licensee than obviously he cannot become a tenant under Section 15(A) for Section 15(A) requires possession as a licensee on 1.2.1973. (Para 10)
Further held, all that is required to make a licensee answer the description of a paying guest is that the licensor also resides in the premises of which a part is in the possession of the paying guest and it is not required that the licensor should physically reside in the same room as the paying guest. The words in which the licensor resides qualify the words premises which immediately precede the said words and are not intended to qualify part of the premises as wrongly assumed by the trial Court. (Para 11)
If the ground floor and first floor of this building are to be treated as premises then the occupation of the owner of the first floor for residence would satisfy the requirement of section 5(6A). Even assuming that the ground floor of the building in which the appellant was residing in a room is treated as the premises , the finding of the appellate Court as stated earlier is that from the front verandah on the ground floor, one enters the dining hall and this hall is retained by the owner, as per the finding and it is from this hall that the owner can reach the bedroom 1 and 2 on the ground floor on the left side or the kitchen which is beyond bedroom 3. Bed room No. 3 is in the possession of the paying guest and using the toilet. His wife, was on compassionate grounds, allowed to cook in the pantry. The appellate Court positively found that the hall was not part of the paying guest accommodation. It follows that the respondent has control of the remaining accommodation on the ground floor and hence section 5(6A) is satisfied. It is not necessary that the owner must physically reside in the remaining accommodation on the ground floor. (Para 12)
The appellant was using part of the premises on licence and the respondent was residing in the remaining part of the same premises de jure in the ground floor and de facto in the first floor and whether the ground floor is taken as the premises or both floors are taken as the premises , section 5(6A) is satisfied. The appellant was only a paying guest. If so, he was not a licensee and as he was not a licensee as on 1.2.1973, he cannot claim to be a deemed tenant. (Para 13)
(ii) EVIDENCE-Admissions-A letter in which there was an admission that the person was occupying as paying guest-Binding on parties under the Bombay Act, 1947. (Paras 7 & 8)
JUDGMENT
M. Jagannadha Rao, J.-Leave granted.
2. These two Civil appeals have been filed by the appellant against the judgment of the Bombay High Court in W.P. No. 5105 and 5106 of 1994.
3. The respondent filed L.E. & C. Suit No. 86/116 of 1979 for possession against the appellant of one room adjoining the kitchen on the ground floor of the bunglow known as Carmel View situated at 63, Mount Carmel Road, Bandra (W), Bombay and for arrears of paying guest charges of Rs. 2500/- till 31.12.1978 at Rs. 200/- per month and for mesne profits from 1.1.1979 till vacant possession is granted. The appellant filed R.A.D. Suit No. 2041 of 1979, Small Causes Court, Bombay for a declaration that he was tenant in respect of the Hall cum dining hall, bed-room No. 3, W.C., Pantry and Bathroom. According to the respondent-owner, the appellant was a Paying Guest from February/March 1971 of Bed-Room No. 2 on an occupation charge of Rs. 120/- per month. In December 1973, the appellant was married at Allahabad and before his wife joined him, executed a letter dated 31.1.1974 admitting that he was a paying guest and seeking permission to bring his wife. He was so permitted and was permitted to use the dining hall also. The occupation charges were increased to Rs. 200/- per month. According to the appellant the respondent forcibly entered in the hall in October 1978. The respondent gave a notice dated 2.11.1978, revoking the permission granted to the appellant to occupy as paying guest . The appellant sent a reply on 19.12.1978 and claimed he was a licensee and did not claim that he was a tenant. The respondent sent a rejoinder on 19.12.1978. The respondent filed an eviction case on 28.2.1979 as stated above and the appellant filed the other suit on 12.4.1979 for declaration that he was tenant.
4. The Trial Judge by judgment dated 27/28-6-1989 disposed of both suits by a common judgment holding that appellant was not a paying guest but was a tenant from the beginning. The appellant s a suit was decreed and the respondent s suit was dismissed. The appellate Bench of the Small Causes Court, Bandra however allowed both appeals preferred by the respondent, by judgment dated 25.8.1994. The appellant filed two writ petitions Nos. 5105 and 5106 of 1994 and they were dismissed by the High Court on 22.4.1997. These two appeals are filed by the appellant against the said judgments.
5. Learned senior counsel for the appellant contended that the appellant was in exclusive possession of the bed room No. 3 and the dining hall, bathroom and Pantry as a tenant, that the letter dated 31.1.1974 wherein appellant admitted he was a paying guest was obtained by the respondent by pressure, and that the respondent had admitted in his evidence that in 1978-79 he had informed the Bombay Municipal Corporation, in tax assessment proceedings, that the appellant was a tenant to whom part of the ground floor was let at Rs. 200 (as distinct from one by other in ground floor as paying guest at Rs. 20/-) and this admission was not explained.
6. The appellate Court has found on a consideration of the letter dated 31.1.1974 and other evidence adduced by parties that the appellant, to start with was a paying guest of bedroom No. 3 even after appellant s wife joined, that the appellant s wife was permitted on compassionate grounds to cook in the pantry, that the hall was not given to the appellant when the charges were increased to Rs. 200/- P.M., and that the dining hall was in occupation or control of the respondent for otherwise the respondent would not have been able to enter Bedroom No. 2 on the left side or the kitchen on the north, beyond the Bedroom No. 3 that was being used by the appellant. (The plan shows that the front closed verandah opens into the dining Hall, and on the left, there are Bed Room 1, 2 and 3 one after the other and beyond Bedroom 3 is the kitchen etc.). The finding is therefore that the dining hall and kitchen etc. and other Bed Room 1, 2 which were
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