Aniruddha Bose JUDGMENT
N.V. Ramana, C.J.I.
1. This appeal is filed against the judgment of the Bombay High Court, in Second Appeal No. 537 of 1991, wherein the second appeal was allowed in favour of the Respondent and the decree in favour of the Appellant herein was set aside.
2. This case arises out of a contract entered into between the Appellant (since deceased represented through Legal Heirs) and the Respondent. Initially Appellant's husband was running a business of stationary in the name of "Karandikar Brothers" before his untimely demise in the year 1962. After his demise, 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 1(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) above is to be given by you only to the owner and I am not responsible therefor. I am to pay a royalty amount of Rs. 90/- (Rupees Ninety only) for taking the said shop for conducting, for every month which is to be paid before the 5th day of every month.
3. Time after time, the contract was duly extended. In 1980s, desiring to start her husband's business again, Appellant herein issued a notice dated 20.12.1980 requesting the Respondent herein to vacate the suit premises by 31.01.1981. The Respondent replied to the aforesaid notice claiming that the sale of business was incidental rather the contract was a rent agreement stricto sensu. Aggrieved by the Respondent's reply, the Appellant herein filed a civil suit being RCS. No. 764 of 1981 before the Court of Joint Civil Judge, Junior Division, Pune. During the course of the trial, one of the important questions that the Trial Court framed, which is relevant for our purpose can be observed hereunder:
Does the Defendant prove that from the year 1963 he is licensee in the said suit premises as contended in para 7 of the plaint? And thereby on the date of suit he became tenant of the suit premises Under Section 15A of the Bombay Rent Act?
The Trial Court by judgment dated 30.08.1988, decreed the Suit in favor of the Appellant herein and held that the purport of the Agreement was to create a transaction for sale of business rather than to rent the aforesaid premi........