1. The only point in this appeal is whether the tenancy of the respondent in respect of the suit room under the plaintiff-appellant deity was for ‘manufacturing purposes’ or for ‘other purpose’ within the meaning of Section 106 of the Transfer of Property Act. The learned Judge of the Trial Court has dismissed the ejectment suit brought by the appellant-deity against the defendant-respondent on the ground of default in payment of rent upon the view that the tenancy of the defendant was for manufacturing purposes and therefore, the said tenancy was only terminable by service of a six months' notice expiring with the year of the tenancy. The learned Judge of the Court below incidentally found that the defendant had committed default in payment of rent for four months and therefore, the ground under Section 13(1)(i) of the West Bengal Premises Tenancy Act had been established by the plaintiff-appellant.

2. In my opinion, the learned Judge's finding regarding the purpose of letting of the suit room in favour of the defendant-respondent cannot be sustained. The burden of proof was heavily upon the defendant-respondent to satisfactorily prove that the tenancy taken by him was exclusively for manufacturing purposes or at least the dominant purpose was for user for manufacturing purposes. Secondly the defendant was required to establish that the activities carried on by him in the suit premises constituted manufacturing purposes within the meaning of Section 106 of the Transfer Property Act. In this connection Mr. Roy, learned Advocate for the appellant has rightly placed reliance upon the recent decision of the Supreme Court in Allenbury Engineers Pvt. Ltd. v. Sri Ram Krishna Dalmia reported in (1973) 1 SCC 7 : AIR 1973 SC 425. Shelat J. delivering the judgment of the Court laid down that the burden of proving that the lease was for manufacturing purposes, must for the purposes of Sec. 106, lie on the party who claims it to be so. That burden is to establish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose. The expression ‘manufacturing purposes’ in Section 106 is used in its popular and dictionary meaning, the Transfer of Property Act not having applied any dictionary of its own for that expression. The word ‘manufacture’ implies a change, but a mere change in the material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use. In my view none of the aforesaid requisites has been fulfilled by the defendant-respondent. The plaintiff-appellant produced an alleged agreement dated 1st December, 1960, Ext. 4. The same was described as an acknowledgement of payment of Rs. 80/- in pursuance of a mutual oral agreement between the parties regarding letting out the said room in favour of the defendant. The said acknowledgment/agreement did not mention the purpose of the letting. The last paragraph of the said agreement/acknowledgment stipulated that the tenant observing the terms and conditions shall be entitled to a rebate of Rs. 8/-per month from monthly rent during the period of his occupation. Another stipulation was that the security deposit of Rs. 80/- made by the defendant would be refundable to him only on his vacating the tenement after giving due notice of one calendar month. The learned Judge of the Court below refused to take the said agreement into consideration upon the view that the agreement was not signed by D.N Srimani as Shebait of the deity and therefore, the said contract was not between the present plaintiff and the defendant. The time construction of the said agreement would be law (sic). Therefore, the concession made on behalf of the plaintiff noted in the judgment does not really bind the present appellant from contending that the view taken by the learned Judge regarding the effect of the said agreement/acknowledgment was plainly erroneous. The premises admittedly was owned by the plaintiff-deity. The said D.N Srimani did not set up any beneficial title in himself. He was throughout acting as a Shebait. The defendant's plea that he did not understand the contents of the said agreement was presumably not accepted by the trial Court. Therefore, the omission on the part of the said D.N Srimani to describe himself as the Shebait of the plaintiff-deity did not make any difference to the true legal position that in the instant case he was acting on behalf of the plaintiff-deity in inducting the defendant as a tenant of the disputed room. It is not really the form of the agreement but the substance which matters. In substance the agreement was between the deity represented by the said D.N Srimani and the defendant.

3. The said agreement, as I have already pointed out, clearly stipulated that the tenant would be entitled to vacate the tenement after giving due notice of one calendar month and claim refund of the security deposited by him. Section 106 of the Trnasfer of Property Act begins by saying “in the absence of a contract or local usage to the contrary……………”. Therefore, the law clearly recognises freedom of the parties to contract regarding duration of the notice for terminating the tenancy. I am unable to accept the submission of Mr. Chatterji that the above stipulation in the agreement can be availed of only by the tenant and the landlord was not entitled to determine the tenancy by giving one month's notice. Upon reading of the said agreement it is clear that the intention of the parties was that the tenancy in favour of the defendant would be terminable by giving one month's notice on either side.

4. It is true that the plaintiff-deity-shebait did not examine himself as a witness in the case. But a Karmachari of the landlord was examined who deposed that he was looking after the suit. The defendant, according to P.W 1 was a monthly tenant. He also stated that the defendant lived in the room and also carried on repair works. P.W 1 had further stated that the defendant had taken lease for business purpose and also for repair works. He denied the suggestion put to him in course of cross-examination that the defendant was manufacturing iron parts and had stated that the defendant was only repairing them. I am not prepared to draw any adverse presumption for non-examination of D.N Srimani particularly when the defendant did not categorically assert in his own evidence that D.N Srimani had personally agreed that the defendant would be allowed to carry on manufacturing process in the suit premises. The only agreement with him mentioned by the defendant was regarding payment of rent.

5. In this connection it may be pointed out that the burden of proof was upon the defendant and in case the defendant failed to prove his case that the tenancy was for manufacturing purpose or at least the dominant purpose of the tenancy was for manufacturing agricultural implements, his defence regarding insufficiency of the length of the ejectment notice must be rejected.

6. The defendant in his written statement took the plea that the tenancy was for manufacturing purposes. In his evidence he also claimed that he had taken lease for manufacturing purposes i.e for manufacture of agricultural implements and not for mere repairing works. He did not do, according to D.W 1, any repair work. D.W 1 also alleged that he had press machine, grinding wheel, drill machine and one Kamarshala and oven fanned by bellows. The defendant's evidence on this point was not corroborated by any reliable evidence. He did not examine any other person corroborating that he carried on manufacturing process in the suit room or that in fact, he had got the above machines etc. The defendant at no stage applied for commission for local inspection of the suit premises. Therefore, at this stage I cannot entertain the plea of Mr. Chatterji that such opportunity after expiry of more than 10 years from the date of the institution of the suit should be extended to the defendant. Further, there is no evidence that the defendant brought the said machines immediately after the tenancy in his favour was created. There is also no evidence that such machines, like press machines, grinding machines, grill machines were usable only for manufacturing purposes and that same were not usable for repair works, which according to the plaintiff, he was carrying on in the suit premises.

7. The defendant in his evidence did not deny that he had been residing in the suit premises. (In this connection see evidence of P.W 1). In fact defendant gave his address as 133, Acharya Prafulla Chandra Road. Therefore, I hold that the defendant was also residing in the suit room. Therefore, the suit room was being used for multiple purposes, even assuming that he carried on manufacturing business. According to the defendant, he carried on repair works. I have already pointed out that the defendant has not satisfactorily proved that he in fact carried on manufacturing business in the suit premises. In any view of the matter when he was himself residing in the suit premises which consisted of a single room, he was required to prove that the dominant purpose of the letting was manufacturing purpose. In this connection see the observation of the Supreme Court in (1973) 1 SCC 7 : AIR 1973 SC 425 (supra) and also the decision of the Supreme Court in C. Mackertich v. Stevart and Co. Ltd., reported in (1971) 3 SCC 39 : (AIR 1970 SC 839). The decision of Laik, J. in 66 Cal WN 414 (416) : (AIR 1962 Cal 608 at p. 610) is distinguishable on facts. In the said case the Court of appeal had found that the defendant was running a Hosiery Factory in the premises and only one room in the first floor was in occupation of one of its officers for residence. Laik, J. held in that case that the principal purpose of the tenancy was for manufacture (see pages 416-417) (of Cal WN) : (at p. 610 of AIR). In the instant case the suit premises consists of one room. The defendant has failed to prove that the venture carried on by him in the room itself amounted to manufacturing purpose. He was also living in the same room. Therefore, in such circumstances the defendant has not been able to prove the requisite elements for bringing his case within the ‘manufacturing purposes’ mentioned in Section 106. He cannot claim that his tenancy was terminable only by six months' notice expiring with the year of his tenancy.

8. The learned Judge erroneously placed reliance upon the Corporation Receipts produced by the defendant in support of his claim that he carried on manufacturing process in the suit premises. In the first place the nature of the tenancy has to be ascertained from the purpose for which letting was made and not by alleged subsequent user to which the premises is put. The defendant must prove that the landlord had agreed to use of the premises for manufacturing purposes. The licence (Exhibit-C) was obtained by the defendant under Sections 218 and 219 of the Calcutta Municipal Act, 1951 for carrying on profession, trade and calling Class VI. The mere fact that the defendant was described as proprietor and because such licence showed that he was carrying on manufacturing of iron goods (agricultural and tin wire machinery) were not by themselves proof of the fact that the defendant actually manufactured these articles in the suit room. The licences under Section 437 of the Calcutta Municipal Act, 1951 for the years 1962-63 and 1963-64 were for the periods subsequent to the date of creation of the tenancy vide Exts. B and B (1). Ext. B stated that the premises was being used as a storing room. Ext. B (1) also mentioned that the room was being used for the purpose of storing old iron. The learned Judge of the Court below was not entitled to infer from these licences that such storing of old iron was for the purpose of manufacturing process. In my view it can be equally said that such storing room was for effecting repairs or commercial purposes. It was also necessary for the defendant to satisfactorily prove that the process carried on by him in the suit premises resulted in the production of new and different article, having distinctive name, character and use. The defendant did not incidentally produce his books of accounts and other papers which might have indicated what kind of business he carried on in the suit premises.

9. There is no substance in the contention of the learned Advocate for the respondent that the plaintiff in the ejectment notice or in the plaint had made implied admission that the defendant was carrying on manufacturing process. The plaintiff did not ultimately press his case of waste against the defendant. The plaintiff's shebait in the ejectment notice had mentioned that the defendant was liable to be elected both under Section 13(1)(i) and 13(1)(d) of the West Bengal Premises Tenancy Act. The statement in paragraph 4 of the plaint that the defendant had set up a highly flamed furnace inside the room and had thereby damaged the roof, cannot also be taken up as an admission by the plaintiff that manufacturing process went on in the premises. The plaint must be read as a whole. The plaintiff had claimed therein that the tenancy was a monthly one. Secondly, existence of furnace or oven (as the defendant claimed in his evidence) may be also consistent with carrying on repairing works in the suit premises. The same need not necessarily mean that the defendant was carrying on manufacturing process. Further, it was necessary for the defendant to prove that such alleged manufacturing process was commenced in the suit premises by consent of the plaintiff. The same was not proved.

10. In the result, I reach the conclusion that the learned Judge of the court below erred in finding that the ejectment notice served upon the defendant was invalid and that the defendant's tenancy was liable to be terminated by six months' notice with the expiry of the year of the tenancy. In the above view it is not necessary for me to examine the question whether a lease for manufacturing purpose can be created only by a registered document. The Supreme Court in (1971) 3 SCC 39 : (AIR 1970 SC 839) (supra) referred to the said question but did not finally decide the same.

11. The defendant tenant in the instant case had made an application under Section 17(2) of the West Bengal Premises Tenancy Act. He had also deposited in the trial court rents for the months from May, 1963 to July, 1963 with statutory interest, vide order No. 2, dated 8th January, 1964. The trial court by its order dated 14th March, 1964 had disposed of the said application. In my view the said order passed under Section 17(2) was not in accordance with law. The learned Judge of the court below did not determine the dispute raised by the defendant. He also did not determine the amount, if any, which the defendant was liable to deposit towards arrears of rent. Therefore, the finding of the learned Judge in the judgment under appeal that the defendant had committed default for four months cannot be sustained. Having regard to the provision of sub-section (4) of Section 17, no decree for ejectment under Section 13(1)(i) can be made against the defendant in case he had complied with the provision of sub-section (1), (2) or (2a) of Section 17 as the case may be. In the instant case the defendant did make an application under Section 17(2). When the trial court did not dispose of the said application in accordance with law, the defendant can justly make a grievance that he has been denied opportunity of depositing an amount equivalent for rent for the period for which he might have made default. Without disposing of the application under Section 17(2) it was also not proper for the trial Court to enter into the issue regarding default.

12. I have not examined the correctness or otherwise of the finding of the trial Court regarding default. The case must be now remitted to the trial Court for taking up the hearing of the Section 17(2) matter. After remand, the Court again would consider whether the plaintiff is entitled to get a decree under Section 13(1)(i). After remand, the Court would determine the dispute and also the amount, if any, still to be deposited and give time to deposit the same, the trial Court will again take up the final hearing of the suit. In case it is found that the defendant has fully complied with the provisions of Section 17(1) and (2), the trial Court will give the defendant relief under sub-section (4) of Section 17 of the Act. The trial Court, after remand, will proceed on the basis that the ejectment notice served upon the defendant was valid and that the defendant's tenancy was thereby lawfully terminated.

13. In the result, I allow the appeal, set aside the judgment and decree of the trial court and also set aside order No. 11 dated the 14th March, 1964 passed by the trial Court and remand the case to rehear the case in accordance with law and in the light of the observations contained in this judgment.

14. Let the records go down as quickly as possible.

15. The trial Court will try to dispose of the suit at an early date.

16. There will be no order as to costs in this appeal.

17. Appeal allowed.