Judgment

PALEKAR, J. :- This is an appeal by special leave from an order passed by the single Judge of the High Court of Delhi in second appeal under Section 39 of the Delhi Rent Control Act, No. 59 of 1958.

2. On or about September 10, 1959 the respondent landlord let out the premises in suit to the appellant on a rent of Rs. 125/- per month. The premises consisted of a shown. On 1-9-1962 the respondent applied under Section 14 of the above Act to the Rent Controller, Delhi for evicting the appellant on the ground that she had sub-let the entire premises to one Sohan Singh who, according to the respondent, was running a business under the name of Royal Dispensing Chemist of Druggist in the shop. It was further alleged that the appellant was charging a fabulous amount as rent from her sub-tenant Sohan Singh. The appellant in her written statement admitted the tenancy but denied sub-letting. She alleged that Sohan Singh was her husband and from the time of the lease the business of a Chemist was being run there in the premises by her husband and she also occasionally helped him in the running of the business.

3. The Rent Controller was of the view that the appellant was the legally wedded wife of Sohan Singh. In any event, he held, Sohan Singh and the appellant were living together as husband and wife and, therefore, there was no question of any sub-letting by the appellant of the premises. That finding was confirmed in appeal by the Rent Control Tribunal, Delhi. Aggrieved by the decision, the respondent went in second appeal to the High Court under Section 39 (1) of the Act. It was contended before the court by the respondent that two substantial questions of law and fact were involved in the appeal - one relating to the status of the appellant as wife and the other whether on the facts found the ground of sub-letting had been established. The learned single Judge agreed that the appeal involved substantial questions of law as submitted, and came to the conclusion that there was sub-letting in favour of Sohan Singh. Accordingly, he gave an order for evicting the appellant. So this appeal by special-leave.

4. It is contended on behalf of the appellant that the learned single Judge has interfered with a pure finding of fact. Under section 39 (2) of the Act the High Court could interfere in second appeal only if there was a substantial question of law. In the present case, he submitted, there was no question of law, much less substantial question of law and, therefore, the High Court was in error in interfering with the concurrent finding of the Rent Control authorities. There is great force in this contention.

5. The High Court has dealt with the case as if this is a matrimonial proceeding in which the status of the appellant as the wife of Sohan Singh was under direct challenge. The simple question which had to be determined in the case was whether having regard to the fact that the appellant and Sohan Singh were living as husband and wife, it was open to draw in the absence of evidence to the contrary, the factual inference that the wife had sub-let the premises to her husband. Sub-letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and one of them who owns the house allow the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises. And that is what the learned single Judge has done in the present case. He was of the view that even if it is assumed that the appellant was the wife of Sohan Singh, she, who was entitled to possession of the shop premises as a tenant, must be presumed to have sub-let the same to Sohan Singh to carry on his business. In support of this conclusion he relied on clause (b) of the proviso to sub-section (1) of Section 14 of the Act read with sub-sectio