Civil Procedure Code, 1908: Order 26 rule 9, Order 39 rule 7 and section 115-Commissioner appointment of-By Court-Notice to parties not necessary if purpose of appointment would be defeated or frustrated-Revisional Court to be reluctant to embark on independent reassessment of evidence and supplant its own conclusion.

East Punjab Urban Rent Restriction Act, 1949: Sections 13 and 15(5)-Tenant-Eviction on ground of sub-letting-Right to enjoyment of property to be for consideration-Concurrent finding with regard to exclusive possession-Whether amenable to reversal in revision.

Transfer of Property Act, 1882: Section 105-Lease and licence-Distinction between-Determined by the law and not by the label parties choose to put upon it-Right to exclusive possession-Determination of from acts done by grantee.

The appellants had granted a lease of commercial premises in favour of the respondent-company, who carried on the business in clothing and textiles in the demised premises. Later, the appellants moved an application under section 13 of the East Punjab Urban Rent Restriction Act, 1949 seeking eviction of the respondent inter alia on the ground that it had unauthorisedly and without the consent of the appellants inducted two sub-tenants-a tailor and an ice-cream vendor-in two portions of the premises. The defence of the respondent in the written statement was that the maintenance of such booths had become a necessary adjunct of all big shops in modern shopping centres, and that the respondent remained in the exclusive possession of the demised. premises.

The appellants relied particularly on the Report and evidence of the Court-Commissioner who in his report substantially corroborated appellants' charge of sub-letting. On the other hand, the respondent relied upon the agreements entered into by it with the· alleged subtenants which, according to it, clearly excluded any possibility of sub-letting. The respondent also examined M.L. Sharma, (R. W. 3) a senior architect in Chandigarh Administration who produced the Plans (Ext. R. 4) relating to certain alterations in the demised premises.

The Rent Controller, on an appreciation of the evidence, was persuaded to the view that while the allegations of sub-letting in favour of the tailor had not been established, the case of sub-letting so far as the Ice-cream parlour was concerned had clearly been established. The Rent Controller held that the evidence on record indicated the exclusive possession of M.S Kwality Ice Cream. The Rent Controller further held that in the circumstances of the case it was also legitimate to draw an inference, and raise a presumption that monetary consideration alone had prompted the respondent into the transactions.

The respondent filed an appeal before the District Judge, and the Appellate Authority affirmed the finding of the Rent Controller on the question of sub-letting in so far as the Ice Cream Parlour was concerned. The Appellate Authority also found that even in the case of the tailor there was sub-letting.

In Civil Revision, the High Court upon a re-appreciation of the evidence set aside the concurrent finding of the Courts below in regard to the element of exclusive possession and set-aside the order of eviction passed by the Courts below. The High Court relied on the agreements between the respondent and the sub-tenants and held that the conditions prescribed in these documents did prima facie indicate that it was a case of licences and not of sub-letting. The High Court took note of the procedural objection in regard to the appointment of the local Commissioner without notice to the respondent, and was of the view that there were circumstances to show that his report was not factually correct.

On behalf of the appellants it was contended that (i) the High Court was in error in interfering, in exercise of its revisional jurisdiction, with the concurrent finding of fact recorded by the courts below; . (ii) the reliance by the High Court on the evidence of R. W. 3 and Plans (Exhibit R. 4) on the point of exclusive possession was wholly misplaced; (iii) a finding of fact which was the result purely of appreciation of oral evidence by the trial court could not be interfered with by an Appellate-Court and a-fortiorari in Revision; and (iv) the view of the High Court as to the alleged infirmity of the Court-Commissioner's report was erroneous.

On behalf of the respondent it was contended that (i) where a finding of fact was shown to have been rendered infirm and vitiated by a misreading of evidence, the Revisional jurisdiction under the Act, which was wider than that under section 115 C.P.C. could be invoked to correct errors even in findings of facts; (ii) the finding of a question of sub-tenancy being a mixed question of fact and law, this Court even on an independent consideration of the whole matter, should not interfere as one of the essential ingredients in the concept of a sub-lease, viz., the existence of monetary consideration, in the form of 'Rent', as distinct from consideration by way of services, was wholly lacking; and (iii) the appeal should fail on the correctness of the finding of the High Court on the lack of exclusive possession alone; and (iv) the two transactions lacked the normal and the usual indicia of tenancy and were no more than mere personal privileges or personal-licence to occupy, and that no interest in the property was transferred.

Allowing the appeal, this Court,