Pradyot Kumar Banerjee, J. - (1.) This appeal at the instance of the plaintiff-appellant against the defendant arises out of a suit for eviction from the disputed premises. The defendant, Dr. J.C. Gupta was a monthly tenant under the plaintiff in respect of the 1st floor flat at 100A, S.N. Banerjee Road, Calcutta, at a rental of 7431 per month payable according to English Calander month. It is alleged that the defendant was a defaulter in payment of rent since October, 1969 as such he is not entitled to the benefit of protection against eviction under the provisions of the West Bengal Premises Tenancy' Act. It is further stated that the premises was let out to the defendant for the residential purposes and the defendant Dr. J.C. Gupta lived there with his family for several years. Thereafter the said defendant removed his family from the said premises to his newly constructed house at 3 Lower Range, Calcutta, where he is permanently living with his family. The defendant Dr. J.C. Gupta, it is alleged, however used the said premises for business purposes by st ing a wooden furniture business under the name and style of "Kamila Furnishing Company" in the benami of his son Sri G.B. Gupta as partner. But, in fact, it is alleged, the defendant is the sole proprietor of the said business. So the said premises although let out for residential purposes have been now used by the defendant for business purpose without the consent in writing of the plaintiff. The plaintiff gave a notice determining the tenancy and filed the suit. During the pendency of the suit Dr. J.C. Gupta died and in his place the heir and legal representative of Dr. J.C. Gupta was substituted.
(2.) Written statement was filed on behalf of the defendant stating, inter alia, that the house was taken for Chamber-cum-residential purposes. It is alleged that the premises was being still used for the residential purposes and the plea to the contrary is wrong. It is further stated that the defendant shifted a portion of his family from the rented house to premises No. 1723 Lower Circular Road, Calcutta. The defendant further shifted a portion of his family from the aforesaid premises No. 172/3, Lower Circular Road, Calcutta, in or about the year 1960 and since then a portion of his family is residing there. The premises in suit was still being used by the defendant for the purpose of his residence as well as for his Chamber in connection with his vocation as a medical practitioner. As the defendants son Sri Joy Bejoy Gupta after finishing his education career entered into the business and the defendant became invalid being suffering from various ailments and having become invalid, the premises in suit is used by the defendants son for residence-cum-office for the purpose of furniture business having the workshop in Park Circus. The plea about the default was however denied. The Court below held that the suit premises was not used for the purpose other than for which it was let out and there was no default and in regard to the default, it was held that the defendant was in default in payment of one months rent, that is, July 1971 deposited out of time on 23rd August, 1971, that is, beyond time and the suit was dismissed. Being aggrieved the plaintiff preferred the present appeal.
(3.) Mr. Sukumar Mukherjee on behalf of the appellant contended that the application under section 151 is not maintainable for condonation of delay of deposit of rent for the month of July 1972 and secondly the dominant purpose of the tenancy was for the residential but it was used by the defendant for business purpose.;