Judgement

SABYASACHI MUKHARJI, J.:- The following two questions arise in this appeal by special leave from the judgment and order of the learned single Judge, Bombay High Court dated 20th December, 1985 :

(i) how far can the High Court in exercise of the power under the writ jurisdiction under Art. 227 of the Constitution interfere with the findings of facts by the appropriate authorities; and

(ii) whether and how far a statutory tenant governed by the Bombay Rent Act, 1947 could have created a valid licence before 1973 ?

2. In order to appreciate the questions, it is necessary to refer to certain facts. One Shri S. P. Rao was an oral lessee in respect of Flat No. 10-A in Konkan Co-operative Housing Society Ltd. Mahim, Bombay (hereinafter called the said premises) of one Smt. Ashalata S. Guram, the respondent herein since 1952. On or about 10th November, 1966, it is alleged that there was a written agreement of leave and licence entered into between the tenant, Shri S. P. Rao and the appellant herein in respect of the premises being the entire flat. According to the respondent landlady this is an ante document created for the purpose of the present obstructionist proceedings out of which the present appeal arises. In 1970, the tenancy of Shri S. P. Rao was terminated by notice of the respondent, landlady as her husband was being posted in Bombay prior to his retirement in 1971. The respondent landlady instituted a suit for possession of the said premises on the ground of personal requirement, subletting and nonpayment of rent. " In the suit, the brother of the present appellant was made a party defendant as a sub-lessee. It is stated before us and in the proceedings that according to procedure prevalent in Bombay Small Cause Court which incidentally has exclusive jurisdiction under the Bombay Rent Act over these matters, a landlords suit for possession is expedited if the suit is confined to the ground of his personal requirement. Accordingly, it is stated, that the landlady, the respondent herein, gave up the other grounds of eviction except that of personal requirement and the name of the appellants brother was deleted as a defendant in the suit. In 1972, an ex parte decree for eviction was passed by the Court of Small Causes against the tenant, Shri S. P. Rao. During the course of the execution of the said decree, the appellant obstructed. She asserted before the bailiff that she was a caretaker of the premises and was herself staying elsewhere.

3. It was highlighted before us that she did not at that time rely on the alleged agreement of leave and licence while offering obstruction to the execution of the decree. Subsequently, the ex parte decree was set aside and the suit was restored. The trial Court on 7th November, 1976 passed a decree of eviction against the tenant Shri S. P. Rao. The tenant, Shri S. P. Rao gave evidence that he was in occupation of a part of the premises and that he required the premises for his residence as well as business.

4. On 23rd January, 1978, the appeal filed from the decree of eviction filed by the tenant Shri S. P. Rao was dismissed by the Appellate Bench of the Bombay Small Cause Court. On 20th March, 1980, a writ petition filed by the tenant Shri S. P. Rao against the appellate decision of the Division Bench of the Small Cause Court, Bombay was dismissed by the High Court. On or about 19th June, 1980, the present appellant and four others having obstructed the execution of the decree confirmed by the High Court, the landlady filed an application for removal of the obstruction in the executing Court against all the five obstructionists. On or about 31st July, 1980 out of the five obstructionists, only the present appellant who was obstructionist No. 3 filed a reply saying that she was in occupation of the whole premises as a licensee, but she did not specify any date of the agreement nor did she produce any copy thereof at that time, the respondent urged before us. The appellant produced the a