A notice of 15 days is insufficient for a tenancy used for manufacturing purposes, and the tenant is not entitled to deduct the occupiers' share of the consolidated rate from the rent.

( 1 ) THIS appeal is on behalf of the plaintiff and it arises out of a suit for ejectment under the Rent Control Act, 1950. The plaintiff's case in short was that the defendants were a firm and were monthly tenants in respect of the entire premises No, 28-B, Nalin Sarkar Street, Calcutta at a rate of rent of Rs. 97-3-6 per month. Only ground for ejectment was that the defendants defaulted in paying rents for two months each, on more than three occasions in course of 13 months. I may state tore that no other particulars of default have been given in the plaint but it transpires from evidence that the defendants defaulted in payment of rent for two units from the month of May to September, 1951 for short payment of only 6 pies each month and the third unit is for November and December, 1951.

( 2 ) IN spite of alleged default in 1951 the notice for ejectment was not sent before 4th February, 1954 and thereafter the present suit was instituted on the 24th May, 1954. The defence was two-fold. Firstly, the notice was invalid and insufficient and secondly that the defendants were not defaulters. The learned Small Cause Court Judge did not accept both the defences and therefore decreed the suit The defendants thereafter preferred an appeal before the Special Bench of the Court of Small Causes, Calcutta and the learned Judges allowed the appeal. In allowing the appeal it has been held that the defendants are not defaulters because there is no evidence of default for the month of June 1951. Nonetheless the learned Judges held that though the defendants paid the sum of Rs. 177-1-3 representing both the owners' and occupiers' share of taxes and the balance sum of Rs. 17-5-9 was also deposited on 22-8-1955, being the rent due from November, 1951, still the defendants were not entitled to deduct the occupiers' share of the consolidated rate. The learned Judges committed a mistake by not looking into the records by holding that the deposit of Rs. 17-5-9 was made on 22-8-1955, which is not a fact. The record shows that the sum was deposited on 15-1-1952. Lastly even if the defendants were defaulters for the month of November and December, 1951, as held by the learned Judges, they were not held to be defaulters for the earlier two units.

( 3 ) ON the question of notice the learned Judges held that the tenancy was for manufacturing purposes and therefore 15 days' notice was insufficient and in consequence the learned Judges allowed the appeal, as I have already stated.

( 4 ) AGGRIEVED by the said judgment and decree the plaintiff has preferred the present appeal in this Court. The defendants have also filed a cross-objection for not allowing them to deduct the sum of Rs. 177-1-3p. towards rent.

( 5 ) MR. Ganguly appearing on behalf of the appellant contended, in the first place, that the notice is sufficient and his grounds are that the premises when let out, was not exclusively for manufacturing purposes, but was for a mixed purpose, that is, for manufacturing as well as for residential purpose and therefore 15 days' notice was sufficient in view of the provisions of Section 106 of the Transfer of Property Act. In support of the said contention Mr. Ganguly referred me to the decision, Sati Prasanna v. Md. Fazel. He also referred me to an unreported decision of Chatterjee, J. in S. A. No. 391 of 1958, Chandra Kanta Jha v. Badrinarain Shaw, in support of his proposition that without sufficient materials on the record, as in the present case, it cannot be held that the tenancy is being used for manufacturing purposes. In the second place Mr. Ganguly contended that there is no escape from the defendants being defaulters, as it is admitted that there was a short payment of 6 pies each month which will be borne out by Ext. 3 series, that is, the money order coupons. He said that under the provisions of Section 2 read with Sections 12 (1) (i) and Section 14 of the 1950 Act, rent must be the entire rent even including the said shor