Bhaskar Bhattacharya, J.
1. This appeal is at the instance of a landlord in a suit for eviction on the ground of default in payments of rent, subletting, changing the nature of user of the premises and also on the ground of causing nuisance and annoyance to the landlord and the neighbours and is preferred against the decree of dismissal of the suit.
2. The present appellant filed the aforesaid suit for eviction of the respondent on the ground of default in payment of rent from July, 1980. Her further allegation was that the flat in question was let out to defendant exclusively for residential purpose but the defendant was using the said flat or a portion thereof for the purpose of photographic business for more than four months without the knowledge and consent of the plaintiff. The plaintiff further alleged that the premises were in occupation of the plaintiff herself and several other tenants and all of them used their respective portions only for residential purpose but as a business of photographic studio was being carried on in the suit premises, the frequent visit of the outsiders throughout the day was causing serious disturbance and inconvenience to the other tenants and the plaintiff herself. It was further alleged that after coming into operation of the West Bengal Premises Tenancy Act, the defendant had transferred or sublet the flat or portion thereof to one Mrs. N. R. Sengupta without the knowledge and consent of the plaintiff.
3. The aforesaid suit was contested by the tenant/defendant by filing written statement thereby denying the material allegations made in the plaint. So far the ground of default was concerned the defendant by complying with the provision contained in Section 17(2) of the Act got protection under Section 17(4) thereof. As regards ground of subletting in favour of Mrs. N. R. Sengupta, the defendant denied the aforesaid fact and contended that Mrs. N. R. Sengupta was no other person than his wife. It was further specifically denied that the defendant was using or allowing any portion of the flat to be used for photographic business as alleged or that outsiders were frequently visiting the flat for the above purpose causing nuisance or annoyance to the neighbours including the plaintiff.
4. At the time of hearing, three persons deposed in favour of the plaint case while the tenant alone gave evidence controverting the allegations made by the landlord. The learned Trial Judge, however, by the judgment and decree impugned herein negatived the pleas taken by the landlord except that of default. As mentioned earlier, so far the ground of default is concerned the learned Trial Judge gave protection to the tenant against eviction under Section 17(4) of the Act as he complied with the provision contained in Section 17(2) thereof.
5. Being dissatisfied, the landlord has come up with the present first appeal.
6. Mr. Ray, the learned Senior Advocate appearing on behalf of the appellant at the time of hearing has limited his submission only to the ground of conversion of the user of the tenancy as alleged by the landlord and has not pressed the grounds of subletting and causing nuisance and annoyance. According to Mr. Ray, as per the terms of the written agreement of tenancy between the parties, the tenant being under obligation to use the property only for residential purpose, the learned Trial Judge ought to have held that in this case the plaintiff has proved by production of documentary evidence that the wife of the tenant is a professional photographer and that she has trade licence as such in the residential address of the defendant. Mr. Ray, thus, contends that from the documents produced by the plaintiff, it has been established that plaintiffs wife was carrying on business as photographer from a part of the suit property. Mr. Ray contends that the aforesaid act comes within the mischief of Section 13(1)(h) of the West Bengal Premises Tenancy Act.
7. After hearing the learned Counsel for the parties and after going through the materials on record we find that according to the tenancy agreement the tenant was under obligation to use the property only for residential purpose. There is no dispute that tenant defendant is still using the suit property for residential purpose. What has come out from the evidence adduced by the parties in this case is that Mrs. N. R. Sengupta, the wife of the tenant, is a professional photographer and has taken trade licence from the Kolkata Municipal Corporation and in the said document of the Corporation, the residential address of the assessee holding such trade licence has been shown to be the address of the suit property. The photograph that has been exhibited by the landlord only indicates that on the door of the suit property there is a nameplate of Mrs. N. R. Sengupta describing her as photographer. The learned Trial Judge observed that no commission was taken to show that there was any photographic studio in the suit property. It has further come in evidence that wife of the tenant during pendency of the suit has acquired a chamber in Lenin Sarani for photographic business and the address given in the trade licence has been changed to that premises. In our view, in order to avail of the benefit of Section 13(1)(h) of the Act, it must be established that although the tenancy was for residential purpose, the tenant was using it for the purpose of one other than that of the residential purpose for more than four months without the knowledge and consent of landlord. We have already pointed out that in this case it is established that tenant is still using it as residential accommodation. If the tenant or any of the members of the family of the tenant is by occupation a photographer and in the trade licence granted by the Corporation, the residential address of the licence-holder is shown to be the address of the tenanted premises, that fact cannot lead to the inference that the business is carried on from that house. In one of the exhibits, it appears that there is a column indicating the place of business but the address of the suit premises has not been mentioned under such column. All that appears from those Municipal documents is that the residential address of the assessee, the wife of the respondent, is that of the tenanted property. The postcard issued by Corporation demanding licence fees from Mrs. N. R. Sengupta was sent to the residential address of the respondent and the same does not show that she carried on any business from the said house.
8. Moreover, we are of the view that if a professional man is a tenant and after taking a residential flat, if in a portion thereof he uses the same as part of his professional work, such act does not come within the rigour of Section 13(1)(h) of the Act.
9. It will appear from Section 13(1)(a) of the Act that even if any part of the property is sublet, transferred or assigned, that is a ground for eviction; but in Sub-section (h) of the same section, the word 'part' has not been used. It indicates that if a tenant resides in the tenanted premises but a small part thereof is used for consultation or for professional work, in such a case, it was never the intention of the Legislature that tenant should be evicted. Our aforesaid view finds support from the decision of the Supreme Court in the case of Prem Chand v. District Judge, Dehradoon, reported in : [1977]2SCR170 and also from the case decided by a Division Bench of this Court in the case of Bhuban Mohan v. Asha Gupta, reported in 1978(1) CLJ 41. In this case it has not been proved that the wife of the tenant has started a regular photographic studio as alleged. In the case of Dashrath Baburao Sangale and Ors. v. Kashinath Bhaskar Data, reported in AIR 1993 SC 2646, relied upon by Mr. Ray there was a specific clause in the agreement of tenancy that the tenant would use the premises for the business of preparing sugarcane juice but the tenant changed the same for selling readymade clothes and in such a situation it was held that there was violation of Section 108(o) of the Transfer of Property Act. The principle laid down in the said decision, thus, cannot have any application to the fact of this case where the tenant is still using the property for residential purpose.
10. On consideration of the entire materials on record, we find that the learned Trial Judge rightly held that merely because the wife of the tenant is a professional photographer and in the documents of the Corporation, she is shown to be an assessee holding trade licence and in those documents the residential address of the assessee has been shown to be that of tenanted property, such fact cannot justify the conclusion that the tenanted property has been used for other purpose than residential one violating Section 13(1)(h) of the Act.
11. We, thus, find that learned Trial Judge rightly turned down the contentions of plaintiff-landlord and dismissed the suit. The appeal, is accordingly, dismissed. In the facts and circumstances, there will be, however, no order as to costs.
Sadhan Kumar Gupta, J.
12. I agree.