Judgement

BHAGWATI, C.J.I. :- The facts giving rise to this appeal lie in a very narrow compass and they may be briefly set out as follows.

2. The appellant was at all material times a tenant of the respondent in respect of a flat on the Southern portion of the first floor of a building bearing No. 128/20 situate at Hazara Road, Calcutta. On 13th July 1970 the respondent filed a suit for eviction against the appellant on the two grounds. One ground was that the appellant had committed default in payment of rent and the other ground was that the appellant had sub-let a part of the premises without the consent of the respondent. So far as the first ground is concerned, it is not necessary to state the facts on which this ground was founded, since both the trial Court as well as the first appellate Court held that there was no default in payment of rent on the part of the appellant and the High Court also in second appeal did not disturb this finding of fact. It was the second ground which prevailed with the High Court in second appeal and we will therefore state only the facts bearing upon that ground.

3. The case of the respondent was that the appellant had without the consent of the respondent sub-let a part of the premises first in favour of one Anjali Mullick and thereafter in favour of Sukriti Sen and then in favour of Vinod Kumar Aggarwal and had thereby rendered himself liable to eviction under S. 13(l)(a), West Bengal Premises Tenancy Act. The appellant sought to repeal this case of the respondent by submitting that there was no sub-letting of any part of the premises by the appellant in favour of any one and taking Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal as paying guests did not amount to creation of sub-tenancy in their favour. The trial Court upheld the contention of the appellant and rejected the claim of the respondent for possession under S. 13(l)(a) of the Act. The trial Court took the view that Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal were merely paying guests of the appellant and there was no sub-tenancy created in their favour by the appellant and this finding of the trial Court was upheld by the first appellate Court in the appeal preferred by the respondent against the decision of the trial Court. The respondent being aggrieved by the dismissal of his appeal by the first appellate Court, preferred a second appeal in the High Court. The High Court disturbed the finding of fact reached by the trial Court and confirmed by the first appellate Court and held that since Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal were in possession of a part of the premises, they should be presumed to be sub-tenants and since it was not shown by the appellant that they were not sub-tenants, the conclusion must follow that the appellant had sub-let a part of the premises successively in favour of these persons and the respondent was consequently entitled to a decree for eviction against the appellant under S. 13(l)(a) of the Act. Though there was no plea taken in the plaint that the appellant was using the premises for a purpose different from that for which the premises were let out to him and no issue was raised on any such plea, the High Court allowed the respondent to take up this plea for the first time in second appeal and observed. that even if Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal were paying guests and not sub-tenants, the appellant had by giving a part of the premises to paying guests one after another, used the premises for a non-residential purpose though the purpose for which the premises had been let out was residential and had accordingly rendered himself liable for eviction under S. 13(l)(h) of the Act. The High Court accordingly passed a decree for eviction against the appellant both under S. 13(l)(a) and S. 13(l)(h) of the Act. The appellant thereupon preferred the present appeal with special leave obtained from this Court.

4. It is difficult to sustain the view taken by