Santosh Kumar Bhattacharjee Vs Sachindra Nath Saha

P.K. Banerjee, J.@mdashThis appeal at the instance of the plaintiff appellant arises out of a suit for eviction on the ground of default and sub-letting. The admitted fact of this case is that the plaintiff is the owner of the premises No. 128/20, Hazra Road, Calcutta and the defendant la a monthly tenant under him in respect of one fiat on the southern portion of the first floor of the suit premises. The defendant is not entitled it is alleged, to any protection under the West Bengal Premises Tenancy Act Inasmuch as, the defendant has sublet transferred or assigned a portion of the suit premises to one Sukumar Sarbadhikari and others without the consent In writing of the plaintiff and that the defendant has defaulted in payment of tent since October, 1969. The notice of ejectment dated 138.69 was duly served upon the defendant who was asked to vacate the suit premises on the expiry of September 1969 but the defendant not having vacated the suit premises, the suit was filed. The defendant contested the suit contending, inter alia, that he has not sublet, transferred or assigned any portion of the suit premises as alleged and that he is not a defaulter in payment of rent. It Is further alleged that this suit has been brought as the defendant did not agree to any increase of the monthly rent. On these pleadings, the parties came to trial. Both the Courts held against the plaintiff on the ground of default and in so far as the sub-letting is concerned, it is necessary for me to consider the evidence adduced by the defendant. On behalf of the defendant, it Is alleged that when the plaintiff went to the box, Sukriti Sen and others remained as paying guest and not e subtenants. Two witnesses have been examined on the side of the plaintiff to show that the defendant sublet a portion of the suit premises to Sunil Kumar Chatterjee. They said that they saw Sukriti Sen to pay Re. 120/- to the defendant In their presence. It is not disputed that Sukriti Sen and others remained in the suit premises but It was asserted that they are not sub-tenants but paying guests. Sukriti Sen also gave her evidence alleging that she is only a paying guest and not a sub-tenant. She said that had she not made the payment of Rs 120/ as paying guest, the defendant would have stopped the supply of meal to her. On this evidence it was held by both the Courts that the plaintiff has failed to prove the sub tenancy. It Is further held that the plaintiff is not entitled to a decree u/s 13(1)(h) of the West Bengal Premises Tenancy Act as the premises was let out for residential purpose and not for other purpose. It is convenient for me to state hero that the defendant took the premises for the residential purpose only. Number of evidences ware adduced by the defendant showing that there are number of paying guests under the defendant. The defendant in his own evidence has stated that he took the premises for the residential purpose of his family only. On the face of this evidence, it Is necessary for me to consider whether In view of the admitted fact and evidence adduced by the parties, the plaintiff has proved his case for eviction. It must be considered that the plaintiff argued In both the Courts that even if the paying guests are not the subtenants still the sub tenancy Is being used for the purpose other than the residential purpose. Therefore the plaintiff Is entitled to a decree u/s 13(1)(h) of the West Bengal Premises Tenancy Act.

2. Before I deal with the point raised, it Is convenient for me to refer to the Scheme of the Act after the amendment of 1969 By Amendment of 1969, in the definition clause that is, section 2(d) and (e) which defined the terms lodger of the Hotel" and the owner of the lodging house. Chapter IV A containing sections 25A to 25F were inserted By amendment of 1979 with effect from 6th March, 1970 section 25C was also inserted. We a e not how ever concerned with section 25C at all. Reading Chapter IV A with the definition of the Hotel and Loding House" it Is clear that the lodger of the Hotel cannot be evicted unless the lodger pays rent There Is no doubt that the property in this case is neither a Hotel nor a lodging house It is however admitted by the evidence of the respondent that the property or a part of it has bean used by the tenant for keeping the paying guests.

3. Mr. Mukherjee on behalf of the appellant contended that this keeping of the paying guest Is coming u/s 13(1) (h) of the West Bengal Premises Tenancy Act and furthermore, admittedly the respondent is keeping the paying guest in respect of the premises. He has sub-let and/or assigned a portion of the house to the parson without previous permission of the landlord.

4. Mr. S.M. Panda appearing for the respondent, however, contended that the paying guest is not a sub tenant and does not come within the mischief of section 13(1)(a) of the Act In the fact and circumstances of this case, Mr. Panda argued that the defendant keeps paying guest in the tenanted premises it is further argued by Mr. Panda that it is not the case of the plaintiff that the plaintiff wants to get a decree u/s 13(1)(h) of the Act and therefore both the Courts are right in holding that section 13(1)(h) of the Act has no application as there Is no such pleading in the plaint

5. In so far as the plea of no pleading u/s 13(1)(h) in the plaint is concerned in my opinion Mr. Mukherjee is right as the defendant himself admitted that he took the premises far residential purpose and be also admitted that he is keeping paying guests who also deposed in favour of the defendant then no specific pleading is necessary. The case reported in Srinivas Ram Kumar Vs. Mahabir Prasad and Others, supports his contentions, In the said case the plaintiffs case was a decree for specific performance of a contract of sale The defendant denied that the case of the plaintiff was for the specific performance of contract but admitted to have taken a loan. The Supreme Court gave a decree in favour of the plaintiff on the admission of the defendant that the money was taken by him as a loan though that was not within the four comets of the pleading. Similarly in this case though the plaintiff''s case was one of the sub-tenancy, the defendant admitted that this was not the case of the sub tenancy but one of keeping paying quest" in the premises in question. In that view of the matter, in my opinion, the defendant''s case is admitted to be one for Keeping paying guest in the premises which is being used for the purpose other than residential purpose, more so when it is admitted by the defendant that he took the tenancy to the residential purpose only. Therefore the plaintiff Is entitled to a decree u/s 13(1)(h) or the West Bengal Premises Tenancy Act; and cannot fail only on the ground that the case was not p traded in the plaint.

6. The next question is whether this is a sub tenancy or not. The word sub-let" according to the decision reported In AIR 1974 Bombay 189 (Dattatraya Kaluram Jadnab Vs. Narayan Das Badri Das Hathi) is of wider amplitude and takes in the letting even to licencees or their occupation at the instance of the tenant either for some considerations like rent or premium will come within the mischief of the word "sub-ley". In the case reported in AIR 1974 SC 208 (Smt. Krishna Wati Vs. Hansraj) it has been held by the Supreme Court that if the landlord is able to prove parting of the exclusive possession then inference of subletting can reasonably be drawn. It was further held by the decision reported in 1977(2) CLJ 153 (Anath Bandhu Vs. Ashim) and Ram Awatar Singh Vs. Khajan Singh, that it Is very difficult to prove directly subletting and then circumstantial evidence for the purpose of drawing the necessary inferences and the intention of the perties are to be considered. Once it has been proved by the plaintiff that there are same other persons in possession of the part of the premises, it is for the tenant to prove that there is no sub tenant. In the present case It is admitted by the defendant that there ere other persons who are in possession of the part of the portion on payment of some money "said to be as paying guests". in view of the circumstances stated above, the plaintiff is entitled to a decree u/s 13(1) (a) of the West Bengal Premises Tenancy Act. The appeal must, therefore, be allowed. The impugned order complained of must be set aside and the suit must be decreed.

There will be no order as to costs.

Let the operation of the judgment remain stayed for one month as prayed for.