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1994 Supreme(Bom) 106
IN THE HIGH COURT OF BOMBAY
H.H. Kantharia and M.F. Saldanha, JJ.
Bhika Cullianji and Co., Bombay .... Appellants.
Versus
Avon Electric Company, Bombay and others .... Respondents.
Letters Patent Appeal No. 28 of 1985, decided on 2-3-1994.
Advocates appeared:
Navin Shah, K.A. Shah and M.P. Bhatt, for the appellants-original respondents-plaintiffs.
Kum. K.C. Nichani, for respondents 1(a) to 1(e).
Headnote:Section 15 (2)-Evidence Act, 1872, Sections 61 and 64-ElIect of evidence in writing-It cannot be discarded in favour of oral evidence-Existence of every special circumstances necessary for.
Held, the High Court cannot disregard one very important aspect of the case, namely, the fact that this is one, one more of those disputes where parties, for whatever reasons, seek to insist upon the unused procedure of a Court discarding the documentary evidence in favour of oral evidence: Where there are a series of agreements on record and where the execution of the agreements are admitted and where the agreements are quite unambigous and enequivocal, the normal principle of law would be that those agreements must be acted upon and accepted. It is only in exceptional cases that a Court may, if every strong grounds are advanced, reject the agreement or construe it as in fact reflecting something otherwise.
Sections 3 and 59-Oral evidence-Challenge in most be reflected in course of cross-examination.
Held, the challenge to the oral evidence must be reflected in the course of cross-examination. If the defendants decline to put the essential material setting out their case in cross-examination, it would have to be regarded virtually as an admission and that such an uncontroverted evidence must be acted upon by the Court. The position in law is crystal clear.
Sections 61 and 64.
See Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 -Section 15 (2).
Section 105-Scope of.
Held, as regards the aspect of exclusive possession, it is needed to record that the basic ingredient of alease as emerges from the provisions of Section 105 of the Act would presuppose not only the possession but control. These are virtually two sides of the same coin and both these ingredients must co-exist. It is insufficient for a party to argue that the party was in possession of some particular premises if it is demonstrated that the party was not in uninterrupted control. Thus, as regards the aspect of possession, it would not be correct in law for a party to contend that the possession was exclusive if the facts indicate that the party did not have access to the premises uninterruptedly at all points of time. The aspect of exclusive possession presupposes once again the unrestricted access whenever the party wants and if there are restrictions on such access or exit, then it would not be construed in law as being exclusive possession.
2. The agreements, which we do not propose to refer to in great detail, are the stereotyped so-called leave and licence agreements that are common in the city of Bombay. The agreements are for a duration of eleven months each and they contain the usual clause that there is no intention whatsoever to confer any tenancy rights, etc., etc. A lumpsum consideration for the period of eleven months has been provided for. The amount which originally started at Rs. 1,650/- has subsequently been raised to Rs. 2,250/-. After the amendment to the Bombay Rent Act on 21-5-1959, the defendants addressed a letter dated 3-8-1960 to the plaintiffs in which they claimed that they were sub-tenants and tendered a certain amount as rent. This position was contested by the plaintiffs who reiterated the position that there was never any intention to confer any lease or tenancy rights on the defendants and that they were licensees simpliciter. It is material to point out that after all this correspondence, one more agreement of the same type was entered into on 21-9-1961, which is the last of the agreements. Since the defendants did not vacate the premises in their possession, the plaintiffs filed a suit before the City Civil Court at Bombay wherein they prayed for a decree for possession on the ground that the licence had been terminated and that the defendants were wrongfully withholding the possession of the premises in question. The defendants took up the contention that, in fact, by virtue of their having been in what they contended exclusive possession of room 8 and by virtue of the amendment dated 21-5-1959 to the Bombay Rent Act that they were lawful sub-tenants and, consequently, that they were not liable to vacate the premises. They also challenged the jurisdiction of the City Civil Court at Bombay on the ground that since their status had changed by virtue of the amendment of the Bombay Rent Act that the Court of Small Causes at Bombay would have exclusive jurisdiction to try any such disputes and that it was wrong to label them as licensees. The learned tria
