PAULO GODINHO Vs. HARI JAIVANT SINAI BHANGUI

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 21st March 1998 complaining that the courts below have wrongly construed the Agreement dated 1st May 1973 to be a licence when in fact upon application of legal principles it ought to have been construed as lease. It is further contended by the appellant that the legal effect of the agreement is to create a document of lease, notwithstanding its description as leave and licence and, therefore, the conclusions arrived at by the impugned judgments are based on misreading of the Agreement dated 1st May 1973 and by non-application of the correct principles of law. In support of these contentions Shri Mahesh S. Sonak, learned advocate appearing for the appellant sought to rely upon the judgment of the Apex Court in the matter of (Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd. , Bhusawal and another), reported in A. I. R. 1966 S. C. 1652, in the matter of (Capt. B. V. D Souza v. Antonio Fausto Fernandes), reported in A. I. R. 1989 S. C. 1816, as well as in the matter of (Associated Hotels of India Ltd. v. R. N. Kapoor), A. I. R. 1959 S. C. 1262 and of the High Courts in the matter of (Parmatma Prasad v. Mt. Sampatti and others), reported in A. I. R. 1968 Allahabad 184 and in the matter of (Kidar Nath v. Swami Parshad and others), reported in A. I. R. 1978 Punjab and Haryana 204, of a Single Judge of our High Court in the matter of (Balvantsingji Anand v. Bhagwantrao Ganpatrao Deshmukh), reported in A. I. R. 1980 Bombay 333, and of the Kerala High Court in the matter of (M/s. Permanand Gulabchand and Co. v. Mooligi Visanji), reported in A. I. R. 1990 Kerala 190. As against this Shri Sudesh M. Usgaonkar, appearing for the respondent, has submitted that in the facts and circumstances of the case the proposed consideration of law does not arise at all particularly in view of the fact that the appellant had not based his defence on the document dated 1st May 1973 and the contention of the appellant was that the said agreement though styled as leave and licence was intended to be the lease agreement. In that regard the learned Advocate drew my attention to the pleadings of the plaintiff/respondent herein as well as those of the defendant/appellant and sought to rely upon the judgment of the Apex Court in the matter of (Swarn Singh v. Madan Singh), reported in 1995 Supp. (I) S. C. C. 306.

(2.) UPON hearing the Advocates for the parties and on perusal of the records, it is seen that the agreement in question on the face of it discloses it to be a leave and licence agreement and it was a specific case of the appellant that though the said agreement was styled as leave and licence agreement, the same was intended to be a lease, the duration of which was at the option of the defendant and further that the said leave agreement was intended to continue for successive periods of 11 months at the option of the defendant and not for four periods of 11 months as alleged by the respondent. In fact, the relevant pleadings in that regard are to be found in paragraphs 6 and 8 of the written statement, which read as under :-