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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