SOHANLAL AMBALAL JOHARI Vs. M M AMONKAR

JUDGEMENT

(1.) Both these petitions may be disposed of by a common order. The petitioner before me in both the matters in one Dr. Sohanlal Ambalal Johari. The respondent to the petitioners are the widow and children respectively of Dr. N.D. Amonkar (hereinafter referred to as Dr. Amonkar Senior). Dr. Amonkar senior was the tenant of certain premise on the fourth floor of Bombay Mutual Terrace at Sandhurst Bridege, Bombay. In these premises leased out by him initially from the Bombay Mutual Life Assurance Society and subsequently after nationalisation of life insurance business from Life Insurance Company of India, he ran a hospital called "Dr. Amonkar Hospital". A sketch plan of the said hospital has been tendered and marked Exhibit G. This was done in this Court as I found that without an accurate sketch plan of the entire hospital and the premises in dispute it was rather difficult to understand and clarify various points of controversy. The rent paid by Dr. Amonkar senior was Rs. 1100/- p.m. for the entire premises on the fourth floor. We are concerned in these two petitions with the area shaded in green as shown in the said sketch pan Exhibit G which is a cabin admeasuring 11-2" x 15-6". As the plan Exhibit G indicates, this cabin has been carved out of the waiting room by means of a wooden partition and it is in evidence that by means of this wooden partition which has grill at the top the rather large waiting room has been divided into two parts. Certain photographs of the partition are found on the record and it is perceived from the photographs that there are in fact two doors giving access to these premises but it is also in evidence that the door on the right (as seen from the waiting room) is the one which was used at all material times.

(2.) It is this cabin which is the subject matter of the proceedings in the Court of Small Causes to which we will now advert. The principal of the two proceedings was the declaratory suit filed by Dr. Johari, being R.A. Declaratory Suit No. 779/2893 of 1973. The said suit was for a declaration that the plaintiff i.e. Dr. Johari had become a protected license under the Bombay Rent Act as amended by Maharashtra Act No. XVII of 1973. An injunction was also sought in the said suit against the defendant restraining them from taking forcible possession of the suit premise or any part thereof and further preventing the plaintiff his agents and servants etc. desiring to see him from reaching the suit premise. Necessary relief was also sought regarding the user of the common waiting room and the water and electricity available in the side premises. The other proceeding in the Court of Small Causes was an ejectment application filed daffiest the said Dr. Johari by the widow and children of Dr. Amonkar senior to eject him from the said premise and recover from him vacant possession of the same. The premises were described in the Application R.A. No. 259-E of 1976 as the portion of the waiting room of the applicants hospital known as Dr. Amonkar Hospital, Bombay Mutual Terrace, S.V. Road, Bombay. In the said application it was alleged that the respondent Dr. Johari had been given the said premises on a leave and licence basis.

(3.) It appears that prior to bring inducted in these premise as a licensee, Dr. Johari was occupying certain premises on the third floor of the very building Bombay Mutual Terrace. This was also as a licensee of another doctor Dr. Sheth. Dr. Sheth, asked Dr. Jhorit to vacate premises and accordingly he was on the lock out for other premises ion which he could carry on his professional work. It may be mentioned that Dr. Johari is a consulting surgeon. He is F.R.C.S. (Eng.) and F.R.C.S. (Eadin.). He is an Honorry Professor of surgery attached to the grant Medical College and Honorary Surgeon attached to the G.T. Hospitals and the Bombay Hospital. He was having consulting rooms as a surgeon in the said third floor premises which he was asked to vacate and sought alternative premises where he could cry on his profession as a consulting surgeon. To turn again to Exhibit G it will be found that shaded blue is a larger cabin shown in Exhibit G as occupied by one Dr. Ravalia. This cabin also has access from the waiting room and it would appear from the said plan Exhibit G, that access to the premises both shaded green and shaded blue would be available only through the said waiting room. The portion shaded blue is larger than the portion shaded green. The measurements shown in Exhibit G are 15-9" x 20-6" (ignoring the passage) and the portion shaded blue also seems to consist of a cabin formed by means of a wooden partition and it is the admitted position that this larger cain was being occupied by the said Dr. Ravalia. This Dr. Ravalia has been a professional colleague of Fr. Johari. He is also a practising surgeon senior to Dr. Johari and has been attached to the G.T. Hospital. He is also M.S. (Bom.), F.R.C.S. (Eng.) and a F.R.C.S. (Edin.). It appears to be admitted position that Dr. Ravalia knew Dr. Amonkar senior since 1954 and his relations with Dr. Amonkar senior and Amonkar family were and are extremely cordial. He was using the large cabin almost since 1954. Since Fr. Johari was also occupying certain premise in Bombay Mutual Terrace an since he was in touch with Dr. Revalia, he seems to have contracted Dr. Amonkar senior and some time in earlier 1970 discussed the possibility of having his consulting rooms in Dr. Amonkar Hospital premise. I am using the expression "Dr. Amonkar Hospital premises" in a descriptive sense referring to the entire premises taken on tenancy basis by Dr. Amonkar senior without deciding at this stage whether the consulting room subsequently given to Dr. Johari can or cannot be regarded in law as part of Dr. Amonkar Hospital. It has been contended by Mr. Advani appearing on behalf of Dr. Johari that properly sealing these premise (the green shaded portion of the consulting room) cannot be regarded as a part of Dr. Amonkar Hospital. I will defer discussion on this point and the conclusion thereon to a later stage in the judgment.