JUDGMENT

RANGANATH MISRA, J.:—The tenant of one room which is a part of a premises located within the township of Aligarh in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Art. 136 of the Constitution. The respondent landlord asked for his eviction on the ground of the tenant having created a sub-tenancy of the premises sometime in October, 1976, in favour of M/s. Pavan Trading Company, a soap manufacturing concern. The tenant denied the allegation of subletting. The main issue raised in the proceeding was whether the tenant had sublet the accommodation as alleged by the landlord. The SCC Judge started dealing with this issue by saying :

"Under Ss. 12, 15 and 20 of the Act if tenant has allowed a non-family member to occupy the accommodation, he should be deemed to have sublet the accommodation. If it is found that Pavan Trading Co. or if any of its partner is carrying on business in the accommodation, the tenant in fact shall be deemed to have sublet the accommodation. In Delhi 1971 Rent CJ 492 (Abdul Aziz v. Yaqub Khan) it was held by the Court that if any person other than a tenant is found sitting in the shop, the tenant has to lead evidence to show that a sitting person is not the sub-tenant. Thus the burden is on the defendant to explain the circumstances under which partner of the Pavan Trading Co. is sitting in the accommodation. 21/C-1 a photograph has been proved. Even the defendant has admitted this photograph during his cross-examination; the person standing in the shop has been identified by the parties to be the son of the proprietor of Pavan Trading Co...."

He looked for evidence from the tenant against subletting by assuming from the presence of the son of the proprietor of Pavan Trading Company that there was a sub-tenancy; held against the tenant and directed his eviction from the premises. The Additional District Judge before whom the tenants revision petition came for disposal took note of the erroneous approach of the trial Court and came to hold :

"In the present case, it has not at all been admitted by the defendant that Pavan Trading Company or any member of the said company has been carrying on business in the shop along with him or by himself. The mere presence of a member of the Pavan Trading Company in the shop at a certain time will not be sufficient to say at all that the business is being carried on by Pavan Trading Company in the shop. In these circumstances, it was for the plaintiff to lead good and positive evidence to prove that the business in fact at that shop was being carried on by the Pavan Trading Company and not by the defendant himself."

He looked into the evidence and came to hold :

"The evidence of the plaintiff was not at all sufficient to shift the burden of proof to the defendant and on consideration of the evidence of the plaintiff it is not at all possible to say that the plaintiff has been able to prove the fact of Pavan Trading Company carrying on the business at the shop which may amount to sub-letting of the shop by the defendant."

The appellate authority, therefore allowed the revision and reversed the order of eviction and directed dismissal of the petition of the landlord. The landlord filed an application under Art. 227 of the Constitution. Referring to the contention of the landlord, the High Court observed :

"Learned counsel for the petitioner submitted that the learned Additional District Judge clearly misconceived his jurisdiction under S. 25 of the Provincial Small Cause Courts Act. It is urged that it was not permissible for the learned Judge to reappraise the evidence on record on the issue purely of fact. The learned counsel contended that whether it was defendant who was doing business in the shop in dispute or M/s. Pavan Trading Company is undoubtedly a pure issue of fact, the findings on which could not be disturbed in revision under S. 25 of the Provincial Small Cause Courts Act" and held :

"The simple question for de