TaxTMI 
TaxTMI 
2021 (5) TMI 1090
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....se, she continued the business for some time. After a while, she was unable to run the business and accordingly decided to let the Respondent run the same for some time. She entered into an agreement dated 07.02.1963, wherein following terms were reduced in writing: "2. For the last about 24 to 25 years, a stationary shop by the name Karandikar Brothers belonging to you of the stationary, note books and books is being run in the premises situated in City Survey no. 196/66 (New House No. 1643) at Sadashiv Peth, Pune. I request to you to give the said shop to me for running the same. Accordingly, you agreed for the same. Accordingly, an agreement was reached between us. The terms and conditions whereof are as follows: A. The stationary shop ∙ by name "Karandikar Brothers" belonging to you of the stationary materials which is situated in the premises described in Para 1 (a) above and in which the furniture etc. as described in Para l(b) above belonging to you is existing is being taken by me for conducting by an agreement for a period of two years beginning from 1st February 1963 to 31st January 1965. B. The rent of the shop described in Para 1 (a) abo....
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....ionary, but she had the grocery shop. After the death of her husband, it was lying closed for years together. In the year 1963 the defendant approached the plaintiff and thereupon the plaintiff agreed to give the suit shop. On licence basis to him. This plea of the defendant is negativated by the terms and conditions of the agreement deed itself. The heavy burden was lying on the defendant to prove that there was licence agreement. He has not discharged the same. Therefore, the document became much relevant, and it has got material importance. If the conditions as enumerated in this document Exh.33 are carefully scrutinized, it will become significant that the deceased plaintiff had the sole intention to hand over' the running business of the suit shop to the defendant. There had been no intention to create the leave and licence in respect of the suit premises. The deceased plaintiff had very specifically and by taking at most case and precaution excluded the word premises of shop in the agreement. But all the while the word ∙ "shop" was used with reference to business only. Nextly she has also excluded the word rent to be used. She had specifically made the recital of im....
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.... 15A of the Bombay Rent Act. Further the Court held that the Trial Court did not have the Jurisdiction to try the cases under the Bombay Rent Act, the appropriate Court should have been Small Causes Court established under the Provincial Small Causes Court Act. The Second Appellate Court also observed on the merits of the case and held as under. "22. Thus, considering the entirety of the case, in my view, both the Courts below have incorrectly interpreted the document and the surrounding circumstances which, in my view, indicate that the parties had in fact agreed that the premises were transferred to the appellant on a leave and license basis." 7. Aggrieved by the same, the appellant herein filed this appeal. 8. The counsel for the appellant contended that the impugned order of the High Court erred in appreciating the language of the contract, which clearly points towards the intention of the parties to create a license for continuing existing business, which was run by late husband of the appellant. On the other hand, the counsel for the respondent has supported the judgment by stating that there is extrinsic evidence which shows that the contract entered into betw....
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....erpreted having regard to external evidence such as receipts of payment under the contract addressed as rent receipts etc. 12. It may be noticed that the High Court had appropriately identified the question of law in the following manner: 15. The debate therefore revolves around the question as to whether the agreement of 7th February, 1963 was a license to conduct a business in the premises or was a license to run the existing business which was being run by the respondents in the suit premises. Does the document create an interest in the premises or in the business? 13. The High Court in order to answer the question utilized Section 95 of the Evidence Act, which reads as under: 95. Evidence as to document unmeaning in reference to existing facts.-When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. Illustration A sells to B, by deed, "my house in Calcutta". A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show tha....