A licensee in occupation on 1st February 1973 is deemed a tenant under Section 15A of the Bombay Rent Act if the license was subsisting; extraneous evidence is admissible to ascertain the true nature of the agreement.

JUDGMENT:

N. J. JAMADAR, J.

1. This Petition under Article 227 of the Constitution of India assails the legality, propriety and correctness of a Judgment and Decree dated 27^th November 1998 passed by the Appellate Bench of the Court of Small Causes in Appeal No. 44 of 1993, whereby the Appeal preferred by the deceased Plaintiff (predecessor-in-title of Respondent Nos. 1a to 1d), came to be partly allowed by setting aside the judgment and decree passed by the Trial Court in RAD Suit No. 3041 of 1977, and thereby declaring that the deceased Respondent-Plaintiff acquired the status of a deemed tenant under Section 15A of the BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT , 1947 (“the Bombay Rent Act, 1947”), and the judgment and order dated 29^th April 1999 in Review Petition - Interim Notice No. 5675 of 1998, whereby the said Interim Notice also came to be dismissed.

2. Shorn of unnecessary details, the background facts leading to this Petition can be stated as under:

2.1 For the sake of convenience and clarity the parties are hereinafter referred to in the capacity in which they were arrayed before the Trial Court in RAD Suit No. 3041 of 1977.

2.2 The Defendant - predecessor-in-title of Petitioner Nos.1a, 1b(i) and 1c(i) and 1c(ii) was the lessee of four shop premises admeasuring 400 sq ft situated on the ground floor of Jamshed Builing at Jacob Circle, Mumbai 400 011, at the contractual rent of Rs.200/- per month.

2.3 The Plaintiff asserted that in the month of November 1966, out of the said four shop premises, the Defendant had allotted one room admeasuring 90 sq ft (“the Suit premises”) on a monthly compensation of Rs.150/- for the purpose of carrying on the Plaintiff’s tailoring business under the name and style of “M/s Jude & Company”.

2.4 The Plaintiff had been carrying on the business of tailoring in the Suit premises in his own name and on his own account and the Defendant had nothing to do with the said business, save and except handing over the possession of the Suit premises on leave and licence basis. The Defendant accepted the amount of compensation till the month of January 1972. However, to camouflage the real transaction between the parties, the Plaintiff used to write the words ‘royalty’, instead of compensation, and “for conducting Bhandarkar Stores” on the said receipts. No store either in the name of Bhandarkar or otherwise had been given to the Plaintiff for conducting Bhandarkar Stores as shown in the receipts.

2.5 After the aforesaid prelude, the Plaintiff asserted, the Defendant induced the Plaintiff to execute an agreement dated 29^th January 1972 purportedly for conducting “Bhandarkar Stores” in the Suit premises for a period of one year commencing from 1^st November 1971 on payment of royalty of Rs.150/- per month, with the security deposit of Rs.3000/-. The Plaintiff avers, the said agreement was, in fact, as and by way of a leave and licence agreement. The intention between the parties was to grant permission to the Plaintiff to use and occupy the Suit premises on a monthly compensation of Rs.150/-. The initial leave and licence agreement in favour of the Plaintiff since the year 1966 was renewed from time to time. Even the agreement dated 29^th January 1972 incorporated a renewal clause.

2.6 On 1^st February 1973, according to