JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---Heard both sides.

2. The defendant in B.C.C.C. Suit No. 6958 of 1972 on the file of the City Civil Court, Bombay is appellant herein.

3. An agreement of licence was executed between the plaintiff and defendant on 18-11-1968. As per the said agreement the suit premises which is a portion of National Medical Hall at Bai Panbai Gangli Building, Ground Floor, Lalbaug, Bombay 400012 was given on licence by the plaintiff to the defendant for the purpose of running Dental clinic. The agreement was for the fixed term for a period of 10 years. The royalty amount of Rs. 380/- per month was also fixed to be paid by the defendant to the plaintiff. In that agreement there are two clauses which enable the parties to terminate the licence before the period. Those Clauses are 11 and 12 which are reproduced hereunder :

"11. In the event of the licensee committing breach of any of the terms and conditions of this agreement, the licenser shall be entitled to terminate this agreement.

12. The licensee may terminate this agreement before the expiry of the said period of ten years if he so desires by giving one calendar months notice in writing to the licenser, to that effect."

4. On the basis of the allegation that the defendant has committed breach of the terms of the licence agreement, the agreement was terminated on 12-4-1972 by the plaintiff. Thereafter the plaintiff had filed aforesaid suit for eviction. The suit was decreed by the trial Court and the defendant filed appeal before this Court as First Appeal No. 114 of 1998 and the same appeal is dismissed by the judgment of the learned Single Judge dated 23/24th December, 1996. Against that judgment, this L.P.A. has been filed by the defendant.

5. Both the trial courts and ld. Single Judge have found that there is breach of the terms of the licence and therefore, termination of the licence is justified.

6. The learned Counsel for the appellant submits the following points for our consideration; attacking the decree of eviction.

(1) The termination of licence is premature as the licence was for the fixed term of 10 years. Both the clauses relating to the termination of lease, as cited above, have come into operation. Neither the defendant did terminate the licence after notice as contemplated in Clause 12 nor he has committed any breach as provided in Clause 11 enabling the plaintiff to terminate the licence.

(2) The term of the agreement expires only on 18-11-1978. In the meantime, section 15-A of the Bombay Rent Act was amended and brought into force with effect from 1-2-1973. Resultantly, the defendant has become tenant and therefore, he has got protection under the Rent Act and his eviction from the suit premises can only be under the provisions of the Bombay Rent Act. City Civil Court could not have decreed the suit.

7. The learned Counsel for the appellant and the respondent were heard on these points. The allegation in the plaint for termination of the licence is that the defendant has committed breach of payment of royalty continuously for the period of five years, that defendant has constructed water-tank without the permission of the plaintiff and the timing of the dispensary was not maintained. On these counts, the plaintiff alleges breach of terms of the agreement by the defendant, for appreciating this argument, we have examined the pleadings and evidence in this case. The plaintiff has not chosen to enter into the witness box. Instead, his daughter was examined on behalf of the plaintiff, she admits that at the time of filing of the suit, she was minor. She further admits that she has given evidence only as per the information passed on to her by her father. She says that she has no direct knowledge about the facts of the case. She says that the suit room is of two portions. One portion is in the possession of her father and the other portion is occupied by the defendant. She categorically states that as envisaged under the agreement the defendant

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