Case Note & Summary
The petitioner, Dinesh Vasantrai Bhuta, filed a writ petition challenging the judgment and decree passed by the Appellate Bench of the Small Causes Court at Bombay in Appeal No. 569 of 2003, which confirmed the decree of dismissal of RAD Suit No. 35 of 1998. The petitioner was the original plaintiff in the suit, claiming to be a monthly tenant of the respondent, Mrs. Vasantben Harvilas Jani, in respect of a flat on the ground floor of 'Asmita' building at Vile Parle (W), Mumbai. The plaintiff alleged that the premises were let out to him in 1969 at a rent of Rs. 1,300 per month, but the defendant suggested showing lower rent to avoid higher property tax and created a Leave and License Agreement dated 4th November, 1969, showing one Mr. Fulshankar L. Joshi as the licensor and the plaintiff as a licensee, which the plaintiff claimed was a camouflage. The defendant filed a written statement denying any privity of contract and contending that the plaintiff was neither a tenant nor a licensee of the defendant. The trial court dismissed the suit, and the appellate court confirmed the dismissal. The High Court, after hearing arguments, held that the plaintiff failed to discharge the burden of proving that the Leave and License Agreement was a camouflage and that he was a tenant of the defendant. The court noted that the findings of fact by the lower courts were based on evidence and not perverse, and therefore declined to interfere under Article 227 of the Constitution. The writ petition was dismissed with no order as to costs.
Headnote
A) Rent Control - Tenancy - Burden of Proof - Bombay Rent Act, 1947, Section 28 - The plaintiff claimed to be a monthly tenant of the defendant, but the defendant contended that there was no privity of contract and that the plaintiff was a licensee under an agreement with a third party. The court held that the plaintiff failed to discharge the burden of proving that the Leave and License Agreement was a camouflage and that he was a tenant of the defendant. (Paras 3-5) B) Rent Control - Leave and License Agreement - Camouflage - Bombay Rent Act, 1947, Section 28 - The plaintiff alleged that the Leave and License Agreement was created as a camouflage to show lower rent and avoid higher property tax. The court found that the plaintiff did not provide sufficient evidence to prove that the agreement was a sham or that the defendant was the real landlord. (Paras 3-4) C) Civil Procedure - Writ Petition - Interference with Findings of Fact - The High Court declined to interfere with the concurrent findings of fact by the trial court and the appellate court, as the findings were based on evidence and not perverse. (Para 5)
Issue of Consideration
Whether the Leave and License Agreement dated 4th November, 1969 was a camouflage for a tenancy and whether the plaintiff was a tenant of the defendant under the Bombay Rent Act, 1947.
Final Decision
The writ petition is dismissed. Rule is discharged. No order as to costs. Civil Application No. 956 of 2011 is disposed of accordingly.
Law Points
- Burden of proof on plaintiff to establish tenancy
- Leave and License Agreement as camouflage
- Privity of contract
- Section 28 of Bombay Rent Act
- 1947
