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PETITIONER: DULI CHAND (DEAD) BY L.RS.

       Vs.

RESPONDENT: JAGMENDER DASS

DATE OF JUDGMENT08/12/1989

BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II SHARMA, L.M. (J)

CITATION:  1989 SCR  Supl. (2) 465  1990 SCC  (1) 169  JT 1989  Supl.    389    1989 SCALE  (2)1331

ACT:     Delhi  Rent Control Act, 1958---Section  14(1)(b)--"Con- sent  in  Writing"--Interpretation  of--Sub-letting--Written consent--Necessity  for--Mere  Permission  or   acquiescence would not do.

HEADNOTE:     The Respondent--landlord filed a petition under  section 14(1)(b) of the Delhi Rent Control Act 1958 for an order  of eviction of the appellant tenant from a shop situate at G.T. Road,  Delhi  on the ground that the tenant Duli  Chand  had sub-let or parted with the possession of the said shop after the  9th of June 1952 to M/s Hira Lal Sri Bhagwan  illegally and without the written consent of respondent landlord.  The contention  of  the appellant--tenant was that  he  had  not sub-let  or parted with the possession of the shop in  ques- tion.  According  to him Hiralal was his relative  who  died sometime prior to 1958 and that Sri Bhagwan was his son  and the name of the business as M/s Hiralal Sri Bhagwan & Compa- ny  was given in memory of the deceased Hira Lal. In  reply, the Landlord--respondent had contended that it was true that Sri  Bhagwan was the natural son of Duli Chand but since  he had given him in adoption to Hiralal, he had gone out of the family  of the appellant and as such it was a clear case  of sub-letting  and parting with the possession of  the  rented premises.     The Rent Controller, held that the land-lord had  failed to  prove parting with possession of the tenanted  shop.  On appeal by the landlord, the Rent Control Tribunal held  that the  tenant  had  parted with the legal  possession  of  the premises and in that view ordered the eviction of the appel- lant-tenant  under section 14( 1 )(b) of the Act.  Thereupon the appellant-tenant preferred second appeal before the High Court.  The  High Court having affirmed the finding  of  the Tribunal  that  the  appellant-tenant had  parted  with  the possession of the premises in dispute, dismissed the appeal. Hence this appeal by the tenant. Dismissing the appeal, this Court,     HELD:  Section 14(1)(b) requires a "Consent in  Writing" of the landlord in order to avoid an eviction on the  ground of sub-letting, 466

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assigning  or otherwise parting with the possession  of  the whole or any part of the premises. [472B]     Mere permission or acquiescence will not do. The consent shah  also  be to the specific sub-letting or  parting  with possession. The requirement of consent to be in writing  was to  serve  a  public purpose i.e., to avoid  dispute  as  to whether there was consent or not. [473C]     If  the words were "without consent of the landlord"  it might  mean without consent, express or implied and in  that sense question of waiver may arise. The question of  implied consent will not arise, if the consent is to be in  writing. [473E]     In  the instant case, though there is some  evidence  to show  that the sign board M/s Hira Lal Sri Bhagwan was  seen in  the premises since 1972 and the landlord had  seen  Shri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had come to know of  Sri Bhagwan getting the exclusive possession  and  doing business in the premises. [471G] Jagan Nath (deceased) through L. Rs. v. Chander Bhan & Ors., [1988] 3 SCC 57; Lakshman Singh Kothari v. Smt. Rup  Kanwar, [1962] SCR 477; Bai Hira Devi & Ors. v. The Official Assign- ee of Bombay, [1958] 1 SCR 1384; Associated Hotels of  India Ltd.,  Delhi v. S.B. Sardar Ranjit Singh, [1968] 2  SCR  548 and  M/s Shalimar Tar Products L,d. v. H.C. Sharma  &  Ors., [1988] 1 SCC 70, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1810  of 1982.     From the Judgment and Order dated 30.3.1982 of the Delhi High Court in S.A.O. No. 204 of 1980. Ram Panjwani and Vijay Panjwani for the Appellant. Avadh Behari Rohtagi and P.N. Gupta for the Respondent. The Judgment of the Court was delivered by     V.  RAMASWAMI, J. The tenant is the appellant.  The  re- spondent-landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ’the Act’) for an order of eviction of the  appellant-tenant for a shop bearing No. 361 (Old No. 467 25-A)  Azadpur,  G.T. Road, Delhi, on the  ground  that  the tenant-Duli Chand has sub:let or parted with the  possession of the said shop after 9th day of June, 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of the landlord.  The main contention of the tenant was that  there was  no  sub-letting or parting with the possession  of  the shop,  that Hira Lal was a relative of the tenant  who  died some time prior to 1958, that Sri Bhagwan is the son of  the tenant,  and that the name of the business was given as  M/s Hira Lal Sri Bhagwan in memory of the deceased relative Hira Lal.  He further pleaded that the possession of the shop  is with  the tenant. Some other defences like  the  Respondent- petitioner  was not a landlord, that he had no locus  standi to  file the petition for eviction, and that the  notice  of termination  of  tenancy was not valid, were  taken  in  the written statement and they were overruled and do not survive for  consideration in this appeal. On the  main  contention, the tenant has taken up the defence that Sri Bhagwan is  the son of the respondent and the name of the business M/s  Hira Lal  Sri  Bhagwan is given only in memory  of  the  deceased relative Hira Lal. A reply statement was filed by the  land- lord  to the effect that though Sri Bhagwan was the  natural

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son of the tenant-Duli Chand, he had been given in  adoption to Hira Lal, that on such adoption Sri Bhagwan had gone  out of the family of the respondent and that it was a clear case of sub-letting or parting with the possession of the shop.     On the facts and circumstances of the case, the question of  subletting did not arise but the case was considered  on the dispute whether the tenant had parted with possession of the shop. The tenant never pleaded that he had obtained  any written  consent from the landlord for parting with  posses- sion.  The  only question, therefore, for  consideration  in this  case is as to whether the tenant had parted with  pos- session  of the whole or part of the tenanted premises.  The learned  Rent  Controller  held that the  landlord  had  not proved  parting with possession of the tenanted shop by  the tenant. On appeal by the landlord the Rent Control  Tribunal held that the tenant had parted with the legal possession of the tenanted premises and in that view ordered the  eviction of the tenant under section 14(1)(b) of the Act. The  second appeal  filed by the tenant to the High Court was  dismissed confirming the finding of the Rent Control Tribunal that the tenant had parted with possession of the tenanted shop.     Section  14(1)(b)  of  the Act provides  that  the  Rent Controller  may  on an application made to him in  the  pre- scribed  manner make an order for recovery of possession  of the premises on the ground-- 468               "(b) that the tenant has, on or after the  9th               day of June, 1952, sub-let, assigned or other-               wise  parted with the possession of the  whole               or any part of the premises without  obtaining               the consent in writing of the landlord." The parametric content and the meaning of the words  "parted with  possession of the whole or any part of  the  premises" had  come  up for consideration in a quite number  of  cases including some of the decisions of this Court. It is  enough if  we  refer to the latest judgment of this Court  on  this point.  In  Jagan Nath (deceased) through L.Rs.  v.  Chander Bhan and Others, [1988] 3 SCC 57, Mukharji, J. speaking  for the Court held that:               "parting with possession meant giving  posses-               sion  to  persons  other than  those  to  whom               possession had been given by the lease and the               parting with possession must have been by  the               tenant;  user by other person is  not  parting               with possession so long as the tenant  retains               the  legal  possession himself,  or  in  other               words  there must be vesting of possession  by               the  tenant  in another  person  by  divesting               himself  not only of physical  possession  but               also  of the fight to possession. So  long  as               the  tenant  retains the fight  to  possession               there  is no parting with possession in  terms               of clause (b) of section 14(1) of the Act."     The  facts  in this case as found by  the  Rent  Control Tribunal  which was accepted by the High Court are that  the concern  M/s  Hira Lal Sri Bhagwan is the  sole  proprietary concern  of Sri Bhagwan, that Sri Bhagwan has been  carrying on  that  business  in the premises in  dispute,  that  Duli Chand-tenant  had  no  interest in the  business,  that  Sri Bhagwan  is  in exclusive possession of the  property,  that tenant Duli Chand works at another Shop, M/s Aggarwal  Hard- ware  and Mills Stores with his younger son, that there  was no plea of concurrent user of the premises by the tenant nor there  is  any  plea that Sri Bhagwan is  a  licensee,  that occasionally  the tenant-Duli Chand was seen sitting in  the

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shop  and that the tenant had not retained any control  over the same. These facts clearly support the finding of  Appel- late Tribunal and High Court that the tenant had parted with legal possession of the shop to the said Sri Bhagwan.     The learned counsel for the appellant, however, contend- ed that Sri Bhagwan was not the adopted son of Hira Lal  and that by permitting the son to carry on business it could not be stated that he had 469 parted  with the legal possession of the premises.  In  this connection,  he drew our attention to the decision  of  this Court in Lakshman Singh Kothari v. Smt. Rup Kanwar, [1962] 1 SCR  477 wherein this Court had held that in order  that  an adoption may be valid under Hindu Law there must be a formal ceremony of giving and taking by the natural parent and  the adopted  parent after exercising their volition to give  and take  the  boy in adoption and that such an  evidence  of  a valid adoption is not available in this case. The  Appellate Tribunal  and  the High Court have dealt with  the  evidence available in this case in detail and came to the  conclusion that  Sri Bhagwan was adopted by Hira Lal. It is not  neces- sary  for us to rely on the evidence available or the  find- ings  as proof of a valid adoption under Hindu Law  but  the evidence  and  the findings are enough to show  that  though Duli Chand and Sri Bhagwan are father and natural son, it is not possible to invoke any presumption that they constituted a  Joint Hindu Family. It may also be mentioned that in  the written  statement the tenant had not  pleaded  specifically that  he and Sri Bhagwan, constituted a Hindu Joint  Family, that they are in joint possession, that either the  business is joint family business or Sri Bhagwan was permitted to use the  premises for carrying on any business as  licensee  re- maining  in  joint possession. The evidence on  adoption  is thus to be treated only relevant for the purpose of  consid- ering  the question whether the tenant has not retained  any control  over the premises and that he has parted  with  the possession, and we do not think that the Courts below  erred in relying on the same for this purpose.     At this stage we may dispose of another point raised  by the learned counsel in connection with the admissibility  of certain evidence in this case. In support of the case of the landlord  that Sri Bhagwan was adopted by Hira Lal he  exam- ined  three witnesses, AW 2, AW 3, and AW 4. The first  wit- ness was an Inspector of House Tax According to this witness in  the House Tax assessment register Sri Bhagwan was  shown as  the  son  of Hira Lal and residing at  26  Sarai  Peepal Thalla, which was the residence of Hira Lal and not that  of tenant-Duli  Chand. The next witness was an  Upper  Division Clerk  of  the Excise Department. His evidence  was  to  the effect  that in the licence issued under the Central  Excise Act the father’s name of Sri Bhagwan was shown as Hira  Lal. The other witness was Upper Division Clerk in the Sales  Tax Department  and  his evidence was that Sri  Bhagwan  was  an assessee  of  the Department and as per the records  in  his office  the father’s name of Sri Bhagwan was Hira  Lal.  The learned counsel contended that these evidences were inadmis- sible  under Section 91 of the Evidence Act. Section  91  of the Evidence Act provides 470 that when the terms of a contract, or of a grant, or of  any other disposition of property, have been reduced to the form of  a  document,  and in all cases in which  any  matter  is required by law to be reduced to the form of a document,  no evidence  shall be given in proof of the terms of such  con-

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tract,  grant  or other disposition of property  except  the document  itself  or secondary evidence of its  contents  in cases  in which secondary evidence is admissible  under  the provisions  of Evidence Act. This Court has  considered  the scope  of  section  91 in Bai Hira Devi and  Others  v.  The Official  Assignee of Bombay, [1958] 1 SCR 1384 it was  held therein:               "The  normal  rule is that the contents  of  a               document  must be proved by  primary  evidence               which  is  the document  itself  in  original.               Section 91 is based on which is sometimes  de-               scribed as the "best evidence rule". The  best               evidence  about the contents of a document  is               the  document itself and it is the  production               of the document that is required by section 91               in proof of its contents. In a sense, the rule               enunciated by section 91 can be said to be  an               exclusive  rule  inasmuch as it  excludes  the               admission  of  oral evidence for  proving  the               contents of the document except in cases where               secondary evidence is allowed to be led  under               the relevant provisions of the Evidence Act."     The  evidence in this case is not with reference to  the terms  of  contract  or grant or any  other  disposition  of property which has been reduced to the form of a document or a case in which the matter is required by law to be  reduced in the form of a document but the evidence is to the  effect that  Sri  Bhagwan has given his father’s name as  Hira  Lal while  claiming ownership to the House No. 26, Sarai  Peepal Thalla to the Municipality and similarly the evidence of the other  witnesses were that while applying for a  licence  he had  given his name as son of Hira Lal. The evidence may  be worth  nothing without production of the extracts  from  the property  register  or  the other books  maintained  by  the departments. However, that does not make the evidence itself inadmissible.     The  learned  counsel for the appellant  then  contended that  Sri Bhagwan had been carrying on business  right  from 1958  to the knowledge of the landlord and  that  therefore, the landlord shall be deemed to have waived his right to get order of eviction on the ground of parting with the  posses- sion under section 14(1)(b) of the Act. In this  connection, the learned counsel for the appellant relied on the 471 evidence  of  the landlord and some of  his  witnesses.  The landlord in his  evidence as AW 1 has stated that Sri  Bhag- wan has been to his knowledge sitting at the shop since  the year  1968  that he has seen the board of M/s Hira  Lal  Sri Bhagwan  since  1972, and that he was residing in  the  same building  behind the shop in dispute. AW 5 who is the  Uncle of the landlord who came to depose on behalf of the landlord in  his evidence had stated that the firm M/s Hira  Lal  Sri Bhagwan is doing the business in premises since 1960-61. The tenant in his evidence has stated that the firm M/s Hira Lal Sri Bhagwan is functioning in the disputed premises for  the last  18 years. The Rent Controller found that Shri  Bhagwan was  doing business in the said premises since  1962,  i.e., after  the death of Hira Lal. On the basis of this  evidence the  learned counsel contended that the landlord  was  aware that  Shri Bhagwan was carrying on business for at least  16 years  prior to the filing of the petition for eviction  and in  the circumstance he shall be deemed to have  waived  his claim  for  eviction  under section  14(1)(b).  The  learned counsel for the landlord, however, contended that the  land- lord had not received the rent after he came to know of  the

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parting  with the possession by the tenant that he was  col- lecting  rent  till  about 1972 only  from  the  tenant-Duli Chand,  that  the tenant defaulted in payment  of  the  rent subsequent to 1972, and the petition for eviction was  filed thereafter in 1976 and in such circumstances there could  be no question of waiving of his right with knowledge of  part- ing  with possession by tenant could arise in this case.  He also  contended legally no such waiver could be  pleaded  on the language used in section 14(1)(b) of the Act.     In Associated Hotels of India Ltd. Delhi v. S.B.  Sardar Ranjit  Singh,  [1968]  2 SCR 548 this Court  held  that,  a waiver  is an intentional relinquishment of a  known  right. There  can be no waiver unless the person against  whom  the waiver  is  claimed had full knowledge of his right  and  of facts enabling him to take effectual action for the enforce- ment of such right.     In  the present case, though there is some  evidence  to show  that the sign board M/s Hira Lal Sri Bhagwan was  seen in  the  premises since 1972 and the landlord had  seen  Sri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had came to know of  Sri Bhagwan getting the exclusive possession  and  doing business  in  the premises. In fact, since the  question  of waiver has not been raised in this form in the courts  below there is no definite finding as to when the landlord came to know  of such parting with possession and Sri Bhagwan  doing business in the pre- 472 mises as the sole proprietor of M/s Hira Lal Sri Bhagwan and whether  he had received rent after such knowledge. We  can- not, therefore, permit this point to be raised for the first time in this Court nor can we go into this question of fact. That apart section 14(1)(b) requires a "consent in  writing" of the landlord in order to avoid an eviction on the  ground of  sub-letting,  assigning or otherwise  parting  with  the possession  of the whole or any part of the  premises.  This Court considering the need for obtaining a consent in  writ- ing under the provision, in M/s. Shalimar Tar Products  Ltd. v.H.C.  Sharma and Others, [1988] 1 SCC 70 quoted  with  ap- proval  the following passage from the judgment of the  High Court  in  Delhi Vanaspati Syndicate v. M/s.  Bhagwan  Dass, Faquir Chand:               "Section  16 of the Act of 1958 holds the  key               to the interpretation of provisions of  clause               (b)  of sub-section (1) of section 14 of  this               Act  as well as of clause (b)  of  sub-section               (1) of section 13 of the Act of 1952. It deals               with restrictions on sub-letting.  Sub-section               (1)  of  section 16 makes  sub-letting  lawful               though  it  was  without the  consent  of  the               landlord  provided  that the  sub-letting  has               taken  place before June 9, 1952 and the  sub-               tenant is in occupation of the premises at the               time  when  the Act of 1958 came  into  force.               Sub-section  (2) of section 16 reiterates  the               provisions of clause (b) of sub-section (1) of               section  13 of the Act of 1952 and  lays  down               that the sub-letting after June 9, 1952  with-               out  obtaining the consent in writing  of  the               landlord shall not be deemed to be lawful.  It               does not say that the requisite consent should               be  obtained before sub-letting  the  premises               and  the  consent obtained  after  sub-letting               will not enure for the benefit of the tenant.               However, sub-section (3) of Section 16 prohib-

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             its subletting of the premises after commence-               ment  of  Act of 1958 without  the  ’previous’               consent in writing of the landlord. The use of               the word ’previous’ in this sub-section  shows               that where it was the intention of the  legis-               lature  that the consent in writing should  be               obtained before sub-letting it said so specif-               ically. The absence of the word ’previous’  in               sub-section  (2)  shows that it  was  not               the  intention  of the  legislature  that  the               consent  in writing could be  obtained  before               sub-letting.  Before the Act of 1952 a  tenant               could  successfully show acquiescence  of  the               landlord in subletting of escape forfeiture of               tenancy. Since the absence of               473               consent  in  writing by a  landlord  for  sub-               letting  gave rise to  Unnecessary  litigation               between  a landlord and a tenant, the  Act  of               1952  required the consent of the landlord  in               writing  after its commencement.  The  purpose               seemed to be that the consent of the  landlord               evidenced  by a writing would cut out  litiga-               tion  on  this ground. After  all  a  landlord               could  always  agree  to  sub-letting   either               before  or after sub-letting of the  premises.               For  that  reason no condition was  laid               down  that  such consent  should  be  obtained               before sub-letting the premises."     In the aforesaid view it was held that it was  necessary for  the  tenant to obtain the consent in  writing  to  sub- letting  the premises. The mere permission  or  acquiescence will not do. The consent shall also be to the specific  sub- letting  or  parting  with possession.  This  Court  further observed  that the requirement of consent to be  in  writing was to serve a public purpose, i.e., to avoid dispute as  to whether  there was consent or not and that, therefore,  mere permission  or acquiescence will not do. While  noting  that everyone  has  a right to waive and to agree  to  waive  the advantage  of a law made solely for the benefit and  protec- tion  of the individual in his individual capacity,  in  the context of the statutory provision of the Delhi Rent Control Act, this Court further held that the requirement as to  the consent  being  in writing was in the  public  interest  and that, therefore, there cannot be any question of waiver of a right,  dealing with the rights of the tenants or  landlord. The  words  used in the section are "without  obtaining  the consent  in  writing  of the landlord." If  the  words  were "without  consent  of the landlord" it  might  mean  without consent,  express or implied and in that sense  question  of waiver  may arise. The question of implied consent will  not arise, if the consent is to be in writing.     The  learned  counsel for the appellant  referred  to  a number of decisions of the English Courts in support of  his contention. We do not think it necessary to refer to them in view of the direct decision of this Court on this point.     In the circumstances, there are no grounds to  interfere with  the  decisions  of the courts below.  This  appeal  is accordingly dismissed with costs. Y.  Lal                                         Appeal  dis- missed. 474