The prohibition against conversion of tenancy from business to residential purpose is not absolute, and the user must have some prejudicial effect upon the property.

L. M. GHOSH, J. :- Ejectment Suit No. 1241 of 1976 was filed in the City Civil Court, Calcutta against the defendant. The defendant was a monthly tenant under the plaintiff in respect of premises No. 173-A, Upper Chitpur Road, Calcutta, now renum­bered 562-A, Rabindra Sarani, P. S. Sham­pukur. According to the plaintiff, the defen­dant became a tenant in respect of two rooms only on the ground floor at a monthly rent of Rs. 60/-, payable according to the English Calendar month. There is no dispute regard­ing the rate of rent, but the defendant pleaded that he not only rented two rooms on the ground floor, but also a space for kitchen, common bath and privy. The grounds of ejectment were default since January, 1975, conversion of the tenancy to residential pur­pose from business purpose and reasonably requirement. The plaintiff also referred to the fact that he served notices to evict dated 22-12-75, requiring the defendant to evict with the expiry of the last date of January, 1976. The two ejectment notices came up with postal remarks "not claimed". The plaintiff averred that a similar notice was served through her son, but the defendant, although present, refused to accept the notice and so a copy of the notice was affixed to the outer door. The plaintiff claimed that an endorse­ment to that effect was made by the plaintiffs son, who went to serve the notice.

2. The plaintiff later amended. the plaint. The ground of reasonable requirement was elucidated by giving a full account of the members of the plaintiffs family. By the amendment, the plaintiff also placed on record that she was not in possession of any other reasonably suitable accommodation. The plaintiff sought to clarify the position with regard to the accommodation available in premises No. 562-A, Rabindra Sarani and in 17-1, Tarak Chatterjee Lane. The defen­dant, in his written statement, denied all the grounds. The service of notice of ejectment was also denied. The default was explained and it was submitted that as the plaintiff did not accept any rent in lump sum under the previous arrangement, the defendant began to deposit rent with the Rent Controller, Calcutta and after the institution of the suit, in Court, With regard to the ground of reasonable requirement, it was submitted that the plaintiff had sufficient accommodation in Tarak Chatterjee Lane premises and also in premises No. 173-A Upper Chitpur Road. The case that the defendant converted the property for residential use from business purpose was also denied.

3. The parties went to trial with these pleadings.

4. The Ld. trial court decreed the suit on the ground of reasonable requirement and also on the ground of conversion. With regard to the ground of default, the Ld. trial court noticed that the defendant was regularly depositing the current rent month by month. Accordingly, he did not pass decree on the ground of default. The service of notice was also accepted by the Ld. trial court. Against the judgment and decree of the Ld. trial court, the defendant/tenant has preferred this appeal.

5. It has already been noticed that the Ld. trial court did not pass any decree on the ground of default. So we are confined to the grounds of conversion and reasonable re­quirement.

6. Mr. Chakraborty, the Ld. advocate appearing for the appellant, has argued that even if there has been conversion, that is not prohibited by the West Bengal Premises Tenancy Act. His next argument has been that the property was let out for mixed purpose and so factually, there could not be any question of conversion. Mr. Banerjee, the learned advocate appearing for the respon­dent, has submitted that in fact there has been conversion and that is within the prohibition of the West Bengal Premises Tenancy Act.

7. The submission of Mr. Chakraborty, that this type of conversion, as alleged, can never constitute offence under the West Bengal Premises Tenancy Act, cannot be accepted as a principle of universal appli­cation in all cases.