The occupant failed to discharge the burden of proof to establish that he was a protected licensee under the Bombay Rent Act and had been in occupation of the premises prior to February 1973.

JUDGMENT - S.K. DESAI, J.:---The writ petition is by the aggrieved opponent in Ejectment Application No. 104/E of 1984. The said application had been filed by the landlord who is the respondent before me. The landlord's claim was that he had given certain premises on licence to the occupant in April /May, 1973. Further according to the landlord the occupant had requested for permission to stay in the premises for a limited period in order to secure medical treatment for his wife. The occupant's case, as revealed in the points of defence, is that he was in occupation of the premises since December, 1971, and that he was paying Rs. 15/- per month for the room he was exclusively occupying. It was claimed by the respondent that the landlord was not issuing any receipts in respect of the said payment and that a similar practice was followed by the landlord for other tenants/occupants. The opponent also claimed to have given a deposit of Rs. 2,000/- (two thousand) to the landlord at the time when he was given permission to stay in the room.

2. By subsequent amendment of the points of defence the occupant also took up the plea of tenancy in the alternative since he was claiming to be in exclusive possession of the room. At the trial two preliminary issues were framed by the trial Judge and the claim of the occupant was negatived on both. It was held that he was neither a tenant in respect of the said room nor a protected licensee. The factual conclusions of the trial Judge were against the occupant on almost all points.

3. The aggrieved opponent carried the matter further and the Appellate Bench of the Small Causes Court dismissed the appeal summarily. It opined that the trial Judge has considered all the evidence and that his conclusions on the pleas of the occupant were correct and proper. It agreed with the trial Judge that the occupant had failed to prove his case. In the result, the appeal was summarily dismissed.

4. It is now well settled that this Court ordinarily does not reappraise the evidence, particularly when faced with concurrent decisions of the courts below who have given exclusive jurisdiction to dispose of the matters between landlord and tenant.

5. In the instant case, however, I am compelled to observe that judgment of both the courts below are unsatisfactory and reveal approaches which are required to be critically commented upon.

6. To take two examples from the decision of the trial Judge. The trial Judge seems to be under the impression that the was deciding a summary proceeding and could decide such proceedings in a summary manner. He has opined further that it did not matter since it was a summary proceeding whether the landlord gave or did not give evidence in the matter. In these matters issues are framed and full evidence is permitted to be led. Any party aggrieved by the decision of the Single Judge on vital issues can appeal to the Bench of the Small Causes Court. By a subsequent amendment the right of party to agitate the issue over again by filing a substantive suit, has been taken away. The approach of the trial Judge as revealed in these observations is wholly wrong. Summary matters cannot be dealt with arbitrarily or capriciously ignoring basic principles of the law of evidence. The Judge is also in clear error when he observes that it did not matter whether the landlord stepped in the box or not. It was possible for the Court to hold that no adverse inference should be dawn by reason of non-examination of the landlord, who in the present case was, at the relevant time, an old man of 95 years. This could be because the Court accepted the landlord's case that all conversations and agreements were not personally or exclusively with the landlord but with his son who was also his Constituted Attorney and who had stepped in the box. The Court must give a finding, in the first place, whether the talks were with the landlord or with the attorney or with both. It is only after such finding is given that the q

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