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PETITIONER:

PULIN BEHARI LAL

Vs.

RESPONDENT:

MAHADEB DUTTE AND ORS.

DATE OF JUDGMENT03/02/1993

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

KULDIP SINGH (J)

CITATION:

1993 SCR (1) 472 1993 SCC (1) 629

JT 1993 (1) 341 1993 SCALE (1)255

ACT:

West Bengal Premises Tenancy Act 1956--Sections 13 and 16--

Eviction on the ground of sub-letting- Previous consent in

writing of the landlord for creation of sub-tendancy-

Necessary.

House Rent Eviction on the ground of default in payment of

rent and sub-letting- Question of waiver- nether acceptance

of rent after having knowledge of sub-letting amounts to

waiving.

HEADNOTE:

The appellant was the tenant with respect to shop room on a

monthly rent of Rs. 50. On 27th September, 1973, the

respondent purchased the premises in question from the

Commissioner of Partition and Receiver in a suit for

partition between the owners of the said premises. The

appellant tenant was notified about the sale and was asked

to pay rent to the respondents.

The respondents filed a suit for ejectment on 12th December,

1975 in the City Civil Court on the ground of default In

payment of rent and sub-letting. The Trial Court decreed

the suit on the ground of sub-letting. The appellant flied

an appeal before the High Court against the judgement of the

Trial Court.

The Judges of the Division Bench of the High Court took

divergent views. While one Judge held that the plaintiff

having accepted the rent even after having the knowledge of

subletting plaintiff had waived or dispensed with their

right of forfeiture and as such directed the dismissal of

the plaintiffs suit, the other Judge took a contrary view

that under the West Bengal Premises Tenancy Act, 1956, a

tenant was under an obligation to pay rent to the landlord

and there was no question of waiving the right of forfeiture

by accepting the rent by the landlord.

In view the difference of opinion between the two judges,

the matter was referred to a third teamed Judge, who agreed

with the latter view. Thus the appeal preferred by the

tenant was dismissed, against which the 472

473

present appeal by special leave was filed.

Dismissing the appeal, this Court,

HELD : 1.01. A perusal of the provisions of Section 13 and

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16 of the Act clearly shows that when there was no previous

consent in writing of the landlord for creation of sub-

tenancy It shall be a ground for eviction in terms of

Section 13(1)(a) of the Ad. Even in case of creation of

sub-tenancy with the consent of the landlord in writing it

was necessary to follow the future procedure prescribed

under section 16(1) of the Act. Mere knowledge or

acknowledgement of rent cannot defeat the landlord's right

to get a decree for ejectment on the ground of sub-letting.

If the view as contended on behalf of the applicant is

accepted the provisions of both the sections 13 and 16 would

become nuptory. [476E-F]

1.02.There Is a clear mandate in Section 13(1)(a) that the

protection against eviction to the tenant shall not be

available in case the tenant transfers, assigns or sub-lets

in whole or in part the premises held by him without the

previous consent in writing of the landlord. [476F]

1.03. Waiver is a question of fact which depends on the

facts and circumstances of each case. In case of waiver of

any provisions of the Statute it Is necessary to prove that

there was conscious relinquishment of the statutes. [478D]

1.04. In the instant case there is no question of

waiver. It was necessary for the tenant appellant to prove

that the landlord had accepted the rent being fully

conscious that by their act they were relinquishing the

right of eviction available to them on the ground of sub-

letting under Section 13(1)(a) of the Act. [478E]

1.05. Any acceptance of rent from the appellant in

January, 1975 cannot amount to any waiver in respect of rent

from the appellant in January, 1975 cannot amount to any

waiver in respect of the right of eviction on the ground of

sub-letting. [479D]

M/s Shalimar Tar Products Ltd. v. H.C Sharma & Ors., [1988]

1 SCC 70, relied on.

474

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2629 of

1980.

From the Judgment and Order dated 17.3.80/25.7.80 of the

Calcutta High Court in Original Decree No. 10 of 1980.

Dr. Shankar Ghosh, Somnath Mukherjee and P.K. Mukherjee for

the Appellant.

Rathin Das for the Respondents.

The Judgment of the Court was delivered by

KASLIWAL, J. This is a tenant's appeal by grant of Special

Leave in a suit for eviction decreed against him by all the

Courts.

The appellant took one road side shop room in the ground

floor of premises No. 75, Surendra Nath Banerjee Road,

Calcutta on rent @ Rs.50 per month. On 27th September, 1973

the respondents herein purchased the premises in question

from the Commissioner of Partition and Receiver in High

Court Suit No. 1183 of 1961 (Anuo Kumar Dhar v. Satya

Narayan Dhar & Ors.), a suit for partition etc., between the

owners of the said premises. The said Commissioner of

Partition and Receiver notified the appellant about the said

sale and asked him to attorney his tenancy and to pay rent

to the respondents. The appellant as such started paying

rent to the respondent purchasers till January, 1975. On

21st May, 1975 the respondent landlords sent a notice to

quit on the ground of default in the payment of rent and

subletting. The appellant sent a reply in writing on 6th

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June, 1975 denying the alleged default in payment of rent as

well as subletting. The respondents filed a suit for

ejectment on 12th December, 1975 in the City Civil Court at

Calcutta (IIIrd Bench). The suit was based on the ground of

default in the payment of rent and subletting. The trial

court decided the question of default in the payment of rent

in favour of the appellant but decided the question of

subletting against him and as such decreed the suit by

Judgment dated 12th June, 1979. The appellant aggrieved

against the aforesaid Judgment filed an appeal before the

High Court.

A Division Bench of the High Court consisting of N.C.

Mukherji and Surendra Mohan Guha, JJ. heard the appeal.

Guha, J. held that the plaintiffs had knowledge of

assignment or subletting in favour of Sujoy

475

Kumar Dass Gupta much earlier than the last payment of rent

in January, 1975. In this view of the matter Guha, J. held

that the rent having been accepted after the knowledge of

subletting long before the determination tenancy, the

natural inference from this conduct would be that the

plaintiffs had waived or dispensed with their right of

forfeiture. Guha, J. as such accepted the appeal and

directed the dismissal of the plaintiff's suit. N.C.

Mukherji, J. disagreed with the aforesaid view of Guha, J.

and according to him the tenant's liability to eviction

arose under the West Bengal Premises Tenancy Act, 1956

(hereinafter referred to as 'the Act') once the fact of

subletting was proved. According to Mukherji, J. a tenant

under the Act was under an obligation to pay rent to the

landlord and there was no question of waiving the right of

forfeiture by accepting the rent by the landlord. In view

of the difference of opinion between the-two Learned Judges

the matter was referred to third Learned Judge. Mr. P.K.

Banerjee J., The.. third Learned Judge by his order dated

23rd June, 1980 agreed with the view of N.C. Mukherji, J.

The majority view being in favour of the respondent

landlords, the appeal was ultimately dismissed by the High

Court by order dated 25th July, 1980. Aggrieved against the

Judgment of the High Court, the tenant has come in appeal to

this Court. We have heard Learned counsel for the parties

and have gone through the record. The trial court as well

as all the Learned Judges including Guha, J. in the High

Court have recorded a finding of fact that there was no

previous consent in writing by the landlord for the sub-

tenancy created by the tenant appellant. This finding of

fact is binding on the appellant and cannot be assailed

before this Court. The only question on which Guha, J. held

in favour of the tenant appellant was that the rent having

been accepted after the knowledge of sub-letting, the

natural inference from this conduct would be that the

landlords had waived the right of claiming eviction against

the tenant. In our view in the facts and circumstances of

the present case the aforesaid view taken by Guha, J. is not

correct. A perusal of the provisions of Sections 13 and 16

of the Act make the position clear. The relevant portions

of the aforesaid provisions are reproduced as under:-

Section 13 Protection of tenant against eviction

(1) Notwithstanding anything to the contrary in any other

law, no order or decree for the recovery of possession of

any premises shall be made by any Court in favour of the

landlord against a tenant except on one or more of the

following groups, namely:-

476

(a) Where the tenant or any person residing in

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the

premises let to the without the previous

consent in writing of the landlord transfers,

assigns or sublets in whole or in part the

premises held by him;

Section 16 Creation and termination of sub-

tenancies to be notified-

(1) Where after the commencement of this Act, any premises

are sublet either in whole or in part by, the tenant with

the previous consent in writing of the landlord, the tenant

and every sub-tenant to whom the premises are sublet shall

give notice to the landlord in the prescribed manner of the

creation of sub-tenancy within one month from the date of

such subletting and shall in the prescribed manner notify

the termination of such subtenancy within one month of such

termination.

(2) Where before the commencement of this Act, the tenant

with or without the consent of the landlord, has sublet any

premises either in whole or in part, the tenant and every

sub-tenant to whom the premises have been sublet shall give

notice to the landlord of such subletting in the prescribed

manner (within six months) of the commencement of this Act

and shall in the prescribed manner notify the termination of

such-tenancy within one month of such termination.

A perusal of the above provision clearly show that when

there was no previous consent in writing of the landlord for

creation of sub-tenancy it shall be a ground for eviction in

terms of Section 13(1)(a) of the Act. Even in case of

creation of such sub-tenancy with the consent of the

landlord in writing it was necessary to follow the further

procedure prescribed under Section 16(1) of the Act. Mere

knowledge and/or acceptance of rent cannot defeat the

landlord's right to get a decree for ejectment on the ground

of sub-letting. If the view as contended on behalf of the

appellant is accepted the provisions of both the above

sections 13 and 16 would become nugatory. There is a clear

mandate in Section 13(1)(a) that the protection against

eviction to the tenant shall not be available in case the

tenant transfers, assigns or sublets in whole or in part the

premises held by him without the previous consent in writing

of the landlord. It was contended by the learned counsel

for the appellant that the provision as regards consent may

be treated as mandatory but so far as the writing part of

the consent is concerned the same may be treated as

directory. It was also contended that in the present case

the sub-tenancy was created in 1970

477

even before the purchase of the suit premises by the present

plaintiff/landlords on 27th September, 1973 and in this view

of the matter the present plaintiff/landlords cannot file a

suit for eviction on the ground of sub-letting under Section

13(1)(a). Reliance in support of the above contention has

been placed on A.S. Sulochna v. C Dharmalingam, [1981] 1 SCC

180.

We find no force in the above contention. The above case

relied on by the Learned counsel for the appellant is

altogether distinguishable. In that case the relevant

provision for consideration was Section 10 (2)(ii)(a) of the

Tamilnadu Buildings (Lease and Rent Control) Act, 1960. The

undisputed facts in that case as observed in the Judgement

were that the father of the appellant landlord had granted a

lease in favour of the father of the respondent tenant prior

to 1952. The father of the appellant as also the father of

the respondent both had died and respondent was accepted as

a tenant upon the death of his father in 1968. The suit for

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eviction on the ground of unlawful sub-letting was filed in

1970 by the appellant who had inherited the property from

her father. Admittedly, neither the appellant nor the

respondent had any personal knowledge about the terms and

conditions of the lease nor they had any personal knowledge

regarding the circumstances in which the father of the

respondent tenant had created a sub-tenancy way back in

1952, 18 years before the institution of the suit. Neither

the appellant nor respondent had any personal knowledge as

to whether or not the sub-tenancy was created with the

written consent of the landlord 18 years back in 1952. On

these facts it was held that there was nothing on record to

show that the sub-letting which was made 18 years before the

institution of the suit was in violation of the relevant

provisions of law. There was no evidence direct or

circumstantial on the basis of which it could be said that

the lease did not confer on the father of the respondent the

right to create a sub-tenancy, or, that it was done without

written consent of the then landlord that is to say, the

father of the appellant. Thus in the above case the

plaintiff landlord had inherited the property from her

father and had brought a suit for eviction on the ground of

sub-letting which was created 18 years prior to the suit.

This Court held that the flouting of the law, the sin under

the Rent Act must be the sin of the tenant sought to be

evicted, and not that of his father or predecessor in

interest. Respondent inherited the tenancy, not the sin, if

any, of his father. The law in its wisdom seeks to punish

the guilty who commits the sin and not his son who is

innocent of the rent law offence. The above case is further

478

distinguishable because the sub-tenancy was created in 1952

long before the Act which came into force in 1960.

So far as the facts of the case in hand before us are quite

simple. Admittedly a sub-tenancy has been created in 1970

without consent in writing of the previous landlord and the

only question for consideration is whether any waiver can be

applied against the present landlords merely on account of

accepting rent till January, 1975. The third Learned Judge

of the High Court has relied on the provisions of sections

23 and 24 of the Act in order to hold that the question of

waiver is only restricted under the aforesaid two sections

which deal with the question of accepting rent deposited

under Section 21 in the Court or acceptance of rent in

respect of the period of default in payment of rent where

there is no proceeding pending in the Court for the recovery

of possession of the premises. In our view there is no need

of restricting the question of waiver under the provisions

of sections 23 and 24 only which deal with special kind of

situation. We are considering the question of waiver

independently of the provisions of the Act and it would be

clear that there is no question of waiver in the present

case. Waiver is a question of fact which depends on the

facts and circumstances of each case. In the case of waiver

of any provisions of the Statute it is necessary to prove

that there was conscious relinquishment of the advantage of

such provisions of the Statute. In the case like the

present one before us, it was necessary for the tenant

appellant to prove that the landlords had accepted the rent

being fully conscious that by this act they were

relinquishing the right of eviction available to them on the

ground of sub-letting under Section 13(1) (a) of the Act.

The Rent Act is for the protection of the rights of the

tenants but at the same time it does not permit the sub-

letting by a tenant without the consent in writing of the

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landlord and this provision has been kept in public interest

for the benefit of the landlords and the same can only be

negatived by an act of conscious relinquishment of such

right by the landlord. We find support in the above view in

a decision of this Court in M/S Shalimar Tar Products Ltd.

v. H. C. Sharma and Other, [1988] 1 SCC 70. In the above

case it was held that:,

"Section 14 (1) proviso (b) and 16(2) and (3)

of the Delhi Rent Control Act enjoin the

tenant to obtain consent of the landlord

in--writing to the specific Sub-letting. This

requirement seraves a public purpose i.e. to

avoid dispute

479

as to whether there was consent or not. The

mere permission or acquiescence is not enough.

There is no implied permission. Any other

interpretation of the provisions will defeat

the object of the statute and is, therefore,

impermissible".

Apart from the circumstances mentioned above it has been

further found established that the respondent landlord had

given a notice to the appellant to quit determining the

tenancy on 21st May, 1975. In reply to the aforesaid notice

the tenant appellant had not disclosed that by a deed of

assignment dated 21st June 1974 in favour of Sujoy Kumar Das

Gupta sub-letting had been made. Thus this fact was not

disclosed even in the reply to the notice as late as

6.6.1975. This fact regarding sub-letting to Sujoy Kumar Das

Gupta came to the notice of the landlord respondent for the

first time on 15th September, 1975 when Sujoy Kumar Das

Gupta, the Sub lessee himself sent a notice through his

Solicitor intimating to the respondent landlords that

partnership between Shri Gupta and appellant had been

dissolved. In the said notice it had been stated that the

appellant Pulin Behari Pal due to old age and physical

infirmities had become unable to discharge his duties in the

partnership business and as such had transferred, assigned

all his interest, goodwill of the business and his right,

title and interest to the said Sujoy Das Gupta absolutely

and forever. Thus any acceptance of rent from the appellant

Pulin Behari Pal in January, 1975 cannot amount to any

waiver in respect of the right of eviction on the ground of

sub-letting. Be that as it may, admittedly there is no

compliance of Section 16 also in the present case and this

is an additional factor on the basis of which the tenant

appellant cannot escape the liability of eviction.

In the result we find no force in the present appeal and it

is accordingly dismissed with costs. In facts and

circumstances of the case we grant time to vacate the suit

premises on or before 30th April, 1993 on furnishing an

usual undertaking. before this Court within four weeks.

B.V.B.D.

Appeal dismissed.

480