SANTOSH KUMAR BHATTACHARJEE Vs. SACHINDRA NATH SABA

JUDGEMENT

(1.) This 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 is a monthly tenant under him in respect of one flat on the southern portion of the first floor at 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 rent since October, 1969. The notice of ejectment dated 13.8.1969 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.

(2.) 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 guests and not sub-tenants. 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 Rs. 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 the evidence it was held by the 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 under Section 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 here that the defendant took the premises for the residential purpose only. Number of evidences were 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 that plaintiff argued in both the Courts that even if the paying guests are not the sub-tenants still the sub-tenancy is being used for the purpose other than the residential purpose. Therefore, the plaintiff is entitled to a decree under Section 13(1)(h) of the West Bengal Premises Tenancy Act.

(3.) 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 Sections 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 are not how ever concerned with Section 25C at all. Reading Chapter IVA with the definition of the Hotel and Lodging 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 part of it has been used by the tenant for keeping the paying guests.