JUDGMENT - M.F. SALDANHA, J.:---This writ petition impugns an appellate order of the Court of Small Causes at Bombay, dated 22-6-1983, which is a common order passed in two appeals, the first of them filed by the present respondent and the second one filed by the present petitioners. A few facts that are relevant are set out below. The dispute concerns flat No. 12 in a building belonging to Prabhat Mahal Co-operative Housing Society Limited, situated at Andheri East, Bombay. An application for ejectment was filed before the Court of Small Causes at Bombay on 7-12-1973 by the present respondent under section 41 of the Presidency Small Cause Courts Act, 1882. The applicant therein claimed that the premises in question had been given to an employee of his in the year 1968 "without charging any compensation out of mercy as the original respondent was in the service of the applicant." The case made out in the plaint is to the effect that the original occupant was then an employee of a firm by the name of "Machinery and Spares" and that his employer had allowed him to use and occupy a godown belonging to the firm for sometime since the year 1963. It was contended that since the employee had no residential accommodation and since he desired to get married that the employer permitted him purely on sympathetic and humanitarian grounds to occupy the disputed premises since the employee desired to get married and that it was under these circumstances that the employee Vijay Chunawalla came to occupy the premises in the year 1968 free of charge. It needs to be emphasised here that this unusual case that the user of the premises was de hors any consideration was set up by the plaintiff. It was further pointed out that this arrangement continued until the year 1973, at which time the employee Vijay Chunawalla, his widow Pushpa Chunawalla and their children were residents in the disputed premises. It needs to be emphasised here that this unusual case that the user of the premises was de hors any consideration was set up by the plaintiff. It was further pointed out that this arrangement continued until the year 1973, at which time the employee Vijay Chunawalla, his widow Pushpa Chunawalla and their children were residents in the disputed premises. Vijay Chunawalla ceased to be the employee in the year 1973 and, therefore, at the end of that year on 7-12-1973 to be precise, the present application was filed for recovery of possession of the premises, the specific case that was made out being that the respondent had no right, title or interest to continue in occupation of the premises in so far as they had not been charged any licence fee or compensation for the period of occupation and that the same was purely as a matter of grace. The simple case made out was that the plaintiff as owner contended that the permission to occupy the premises having been revoked, he was entitled to claim possession thereof. It needs to be mentioned that some time after the filing of the application, that is to say in the year 1973, Vijay Chunawalla died and the proceedings were contested by his widow and the minor children, who were his legal heirs and who had been brought on record. 2. Evidence was led before the trial Court, and after hearing the parties the trial Court took the view that the application in question was liable to be granted. The principal ground for this was because the respondents had taken up the defence that they were entitled to protection under the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 on the ground that the deceased. Vijay Chunawalla was paying rent for the premises and that, consequently, the application was not maintainable. The trial Court held that this fact had not been established and, furthermore, that even assuming that there was a contention of service tenancy pleaded, that the same had not been proved nor could it be of any avail to the respondent and that, consequently, the applicant was entitled to recover the possession of the premises. This view was substantially confirmed by the Appeal Court. It is against the appellate order that the present writ petition has been preferred. 3. Mr. This view was substantially confirmed by the Appeal Court. It is against the appellate order that the present writ petition has been preferred. 3. Mr. Masand, learned Counsel appearing on behalf of the petitioners, has contended that interference from this Court is necessary in so far as, according to him, there is a gross error apparent on the record of this case because he submits that both the Courts, the Appeal Court in particular, have been totally misled by certain submissions and that they have erred in law by ignoring the evidence on record. Mr. Masand submits that in the points of defence a specific plea has been canvassed that rent was being paid for the premises and that, consequently, protection under the provisions of the Bombay Rent Act is available. He pointed out that in so far as the premises which undisputedly were in the occupation of the respondent in February, 1973 would be eligible for the protection conferred under section 15-A of the Bombay Rent Act and that, consequently, the short issue which the Court is required to determine was the question as to whether or not some compensation/licence fee/rent was at all being paid for the premises. It is Mr. Masand's submission that Vijay Chunawalla's widow in her evidence has specifically averred that a sum of Rs. 75/- per month was being paid as rent for the premises and it is her case that the amount was being deducted from the salary of her deceased husband. She admits that she was not aware as to whom the rent was being paid to. Mr. Masand contends that on the facts of this case it would be impossible for the respondent to submit or for that matter to get any Court to accept the contention that Vijay Chunawalla was permitted to live in the disputed premises absolutely free of cost and that there was no monetary consideration for the use and occupation of the premises. Apart from this submission, Mr. Masand contends that the specific evidence of the widow ought not to have been discarded by the two courts below. He submits that there are some references in the records of the firm that were produced before the trial Court, the first of them being to the recovery of an amount of Rs. Apart from this submission, Mr. Masand contends that the specific evidence of the widow ought not to have been discarded by the two courts below. He submits that there are some references in the records of the firm that were produced before the trial Court, the first of them being to the recovery of an amount of Rs. 75/- from Vijay Chunawalla in the year 1969-70 and another entry in respect of the recovery of an amount of Rs. 900/- under the head of bonus paid. Mr. Masand contends that these entries are eloquent evidence of the fact that, in fact, the amount of Rs. 75/- per month was being deducted from the deceased Vijay Chunawalla's salary. It is on the basis of this material that it is submitted that both the orders are grossly erroneous and that they have resulted in a miscarriage of justice and, consequently, that interference would be called for. 4. As against this position, Mr. Abhyankar, learned Counsel appearing on behalf of the respondent, has vehemently submitted that the strict ingredients of section 4-A and section 15-A of the Bombay Rent Act will have to be satisfied before the Court so much as accepts the pleas in the defence that had been canvassed. In support of his submission, Mr. Abhyankar has taken me through the record which consists of the evidence and the two orders of the courts and he has pointed out, in the first instance, that when the points of defence were filed, a vague plea was canvassed to the effect that the alleged compensation/rent in respect of the premises was being paid. Mr. Abhyankar submits that if there was any truth in this plea, the quantum of rent would have been stated. He further pointed out that this position coupled with the admission in the oral evidence on the part of the widow of the deceased Vijay Chunawalla, who admits that she was not aware of the actual person to whom the rent was being paid, supported by the documentary evidence produced by the firm wherein the records do not show any regular deduction from the salary, would all be indicative of the fact that the defence pleaded was not only untenable but was false. Mr. Mr. Abhyankar submits that the burden of establishing that a licence fee or rent was paid lay squarely on the defence and that this burden has not been discharged. In this view of the matter, it is Mr. Abhyankar's submission that both the courts below were fully justified in the decisions given by them. 5. As indicated by me earlier, it is the plaintiff who came to Court with the specific plea that the user of the flat was gratis and not for any consideration. This position was disputed and, therefore, the onus of establishing this fact lay squarely on the plaintiff. This was the fundamental error committed by both the courts below in proceeding on the footing that the defendants had failed to establish that they were paying a consideration for the use and occupation of the premises. The relationship between the plaintiff and the defendants was that of employer and employee governed by contractual obligation and the trial Court would have been justified in proceeding on the presumption that in these circumstances rent or licence fee would be charged for the premises. If the situation was otherwise, it was for the plaintiff to so establish. 6. Mr. Abhyankar further submitted that the appellate stage is over and that this is a proceeding under Article 227 of the Constitution of India and that, consequently, it cannot be equated with a situation where evidence is required to be re-appraised. Mr. Abhyankar's submission essentially is that interference at this stage can only be justified if a grave or manifest error is apparent on the face of the record and not merely because, as submitted by Mr. Masand, another view on the record is possible. The proposition of law canvassed by Mr. Abhyankar is not in dispute at all, but it is equally well-settled law that Article 227 of the Constitution provides a corrective in cases where failure of justice or miscarriage of justice has resulted and a Court cannot hesitate in coming to the assistance of an aggrieved litigant in such circumstances. The proposition of law canvassed by Mr. Abhyankar is not in dispute at all, but it is equally well-settled law that Article 227 of the Constitution provides a corrective in cases where failure of justice or miscarriage of justice has resulted and a Court cannot hesitate in coming to the assistance of an aggrieved litigant in such circumstances. The short point that needs to be determined is as to whether the courts below were at all correct in law, on the basis of the record before them, in recording the conclusion that no payment that could come within the definition of either a licence fee or compensation or for that matter rent was recovered from the deceased Vijay Chunawalla. Mr. Abhyankar was critical of the manner in which the defence evidence was led and he submitted that there has been a definite improvement in so far as for the first time in the examination-in-chief was the case made out that a sum of Rs. 75/- was being paid as and by way of rent. He submits that it was incumbent on the respondent to have made good this contention because a bald statement on oath before the Court which is according to him a definite improvement on the written statement would not be sufficient to establish a defence of the type that is required in law. 7. One needs to bear in mind certain special features of this case, the first of them being that admittedly the employee concerned, that is the deceased Vijay Chunawalla, had died in the year 1976 and that he was, therefore, not available to give evidence when the matter was heard before the trial Court. The widow of the deceased Vijay Chauwalla has, undoubtedly, stated that the amount of Rs. 75/- was being recovered from his salary. It is true that this version has been disputed and that the employer has sought to produce certain records. Unfortunately, on a perusal of those records, one does find certain references to two figures, the first of them being of an amount of Rs. 75/-, which is shown as loan recovered. Neither the employer nor the Accountant, who has been examined, has furnished to the Court any details of the quantum of loan and details of the recoveries made. Under these circumstances, considering the fact that this figure of Rs. 75/- does tally with the amount of Rs. 75/-, which is shown as loan recovered. Neither the employer nor the Accountant, who has been examined, has furnished to the Court any details of the quantum of loan and details of the recoveries made. Under these circumstances, considering the fact that this figure of Rs. 75/- does tally with the amount of Rs. 75/- that was supposed to have been recovered from the deceased employee, it is possible on the basis of this entry to hold that some recoveries were being made from him. The matter does not rest there, because Mr. Masand has relied heavily on the second entry of the figure of Rs. 900/- which again tallies with the annual compensation of Rs. 900/- that would be recoverable at the rate of Rs. 75/- per month. Neither the employer nor the Accountant has been examined to explain the exact significance of these entries and though they have admitted them, the evidence is not only vague but totally unsatisfactory in this regards. 8. Even if the respondent-employee had been alive when the evidence was led, the real clinching and reliable material could have only come from the employer's records. His letter of employment, the order sanctioning increments, the salary payment receipts, the terms and conditions under which the premises were given to him are all documents within the custody of the applicant-employer who has not produced them before the Court. Such suppression could only result in an adverse inference. 9. It is true that in the evidence of the widow, she has not been able to produce the salary slips of her deceased husband. It is equally true that she has admitted that she did not know to whom the rent was paid. To my mind, these aspects are not of much consequence for the reasons set out earlier because this Court will have to view the case from the examination of several other tell-tale circumstances that are on record. The first of these circumstances is the fact that admittedly the deceased Vijay Chunawalla was permitted the use and occupation of the premises during the years 1968 to 1973. The employer has not produced any document with regard to the circumstance under which he permitted this use and occupation. The first of these circumstances is the fact that admittedly the deceased Vijay Chunawalla was permitted the use and occupation of the premises during the years 1968 to 1973. The employer has not produced any document with regard to the circumstance under which he permitted this use and occupation. To my mind, it is quite inconceivable for a Court to accept the plea that an employer would allow an employee of his who at that time was only a clerk, the use and occupation of residential premises which, in this case, consists of a one bed room flat without recovering any compensation from him. Had this been so, to my mind, the employer would have most certainly safeguarded himself by issuing a document and obviously by getting the employee to execute a declaration that he was being permitted the use and occupation of the premises purely as a matter of grace or a temporary arrangement and that he would not claim any right, title or interest in respect of these premises principally on the ground that he was not paying any compensation for the same. In the absence of such evidence, this Court will have to take notice of the fact that the employer is a businessman, that he has allowed an employee of his to use and occupy the premises and that it is inconceivable to accept that this would be done without recovery of any compensation. 10. Having regard to this position, to my mind, both the courts below were certainly in error in having discarded, without justification, the evidence of the widow of the deceased wherein she has specifically averred on oath that a compensation of Rs. 75/- per month was being paid for the premises. The two courts below were certainly in error in having disregarded and discarded this vital material on the state of the present record. If this evidence is accepted, then the application filed under section 41 of the Presidency Small Cause Courts Act is liable to fail, having regard to the legal consequences that ensue from that position. 11. It was pointed out in the course of the submissions by Mr. If this evidence is accepted, then the application filed under section 41 of the Presidency Small Cause Courts Act is liable to fail, having regard to the legal consequences that ensue from that position. 11. It was pointed out in the course of the submissions by Mr. Abhyankar, learned Counsel appearing on behalf of the respondent that admittedly on and from the date when the application was filed before the Court of Small Causes, that is from December 1973, no compensation or payment of any type has been made by the present petitioners. Mr. Masand pointed out that at the stage of the admission of this petition, the petitioners were directed to deposit an amount of Rs. 9,000/- with liberty to the respondent to withdraw the same. Mr. Abhyankar states that the amount is lying in Court and that the same has not been withdrawn by his client. In this view of the matter, the amount deposited in Court with interest, if any, is directed to be refunded to the petitioners. Mr. Abhyankar states that the respondent will adopt appropriate steps according to law with regard to this aspect of the case as the society charges alone are about Rs. 500/- per month. That is a separate issue which this Court is not called upon to deal with. 12. In this view of the matter, the order of the trial Court as also the order of the Appellate Court are liable to be set aside. The petition deserves to be allowed and, accordingly, the rule is made absolute. In the circumstances of the case, there shall be no order as to costs. Petition allowed. -----