JUDGMENT

UNTWALIA, J.:—The appellants in this appeal by special leave had filed an application under section 41 of the Presidency Small Cause Courts Act. 1882 - hereinafter referred to as the S. C. C. Act, against the respondent to compel him to quit and deliver up the possession of the premises in question. The Small Cause Court made an order in favour of the appellants under Section 43 of the S. C. C. Act. On the filing of an application in revision by the respondent in the Bombay High Court, a learned single Judge of that Court has set aside the order of the Small Cause Court and dismissed the appellants application for eviction of the respondent. Hence this appeal.

2. This Court does, as it ought to, act with restraint and is loathe to pass any harsh or unpalatable remark concerning the judgment of a High Court. But sometimes constraint outweighs restraint and compels this Court in discharge of its duty to make some strong observations when it finds the judgment of the High Court running galore with gross and palpable mistakes of law almost amounting to judicial imbalance in the approach to the case. We regret to say that this is one such case.

3. The appellants had allowed the respondent to occupy the shop premises in question which are situated outside Swadeshi Market, Kalbadevi Road in Bombay under certain agreements of leave and licence which were renewed from time to time. The last agreement was dated April 30, 1965. Duration of the period of licence mentioned in this agreement was in the following terms:

"(1) This agreement shall be deemed to have commenced from 1st May 1965 and shall remain in force for 11 months and will automatically come to an end on 31st March, 1966 on which day the Party of the Second Part shall remove himself from the premises of his own accord with all his articles and belongings and in event of the Party of the Second Part not clearing out of the premises on the said day viz., 31st March, 1966 the parties of the First Part shall be at liberty to remove the goods and articles of the party of the Second Part by themselves, by employment of labour at the cost and on account of the party of the Second Part and shall be entitled to stop and prevent the Party of the Second Part from entering the premises and making use of the same by himself or his agent."

The respondent did not vacate and remove himself from the premises as per the aforesaid term of the agreement. He purported to claim to be a tenant of the premises and with that end in view his advocate wrote a letter to appellant No. 1 on May 23, 1966 stating therein that the respondent was a tenant of the shop premises and had remitted the rent for the months of March and April, 1966. A reply to the letter aforesaid of the respondents advocate was given on behalf of the appellants on June 14, 1966 refuting therein the respondents claim of being a tenant of the shop premises and asserting that he was a mere licensee. It was also said that the said licence had automatically come to an end on March 31, 1966 and thereafter he was "no better than a trespasser." Subsequent correspondence followed between the parties in which the appellants showed their readiness and willingness to accept money from the respondent by way of compensation for the use and occupation of the shop premises without prejudice to their rights and threatening to take legal action for getting the possession of the premises.

4. On the 10th July, 1967 the appellants filed an application under Section 41 of the S. C. C. Act. The respondent contested that application, inter alia on the ground that he was a tenant of the shop premises and was, therefore, protected against the eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for brevity, the Bombay Rent Act). As per the requirement of Section 42A of the S. C. C. Act, the question whether the respondent was a tenant of the appellants was tried as a preliminary issue by the Small Cause Court, Bombay. A singl