N.M 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.
2. The appellant took one roadside shop-room in the ground floor of premises No. 75, Surendra Nath Banerjee Road, Calcutta on rent at the rate of Rs 50 per month. On September 27, 1973 the respondents herein purchased the premises in question from the Commissioner of Partition and Receiver in Arup Kumar Dhar v. Satya Narayan Dhar High Court Suit No. 1183 of 1961 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 attorn his tenancy and to pay rent to the respondents. The appellant as such started paying rent to the respondent purchasers till January 1975. On May 21, 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 June 6, 1975 denying the alleged default in payment of rent as well as subletting. The respondents filed a suit for ejectment on December 12, 1975 in the city civil court at Calcutta (3rd 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 June 12, 1979. The appellant aggrieved against the aforesaid Judgment filed an appeal before the High Court.
3. 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 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 of 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 of the rent by the landlord. In view of the difference of opinion between the two learned Judges the matter was referred to a third learned Judge. Mr P.K Banerjee J., the third learned Judge by his order dated June 23, 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 July 25, 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 subtenancy 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 subletting, 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:
“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 grounds, namely,—
(a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sublets in whole or in part the premises held by him;
16. Creation and termination of subtenancies 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 subtenant to whom the premises are sublet shall give notice to the landlord in the prescribed manner of the creation of subtenancy 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 subtenant 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 subtenancy within one month of such termination.”
4. A perusal of the above provisions clearly show that when there was no previous consent in writing of the landlord for creation of subtenancy it shall be a ground for eviction in terms of Section 13(1)(a) of the Act. Even in case of creation of such subtenancy 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 subletting. 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 subtenancy was created in 1970 even before the purchase of the suit premises by the present plaintiff/landlords on September 27, 1973 and in this view of the matter the present plaintiff/landlords cannot file a suit for eviction on the ground of subletting under Section 13(1)(a). Reliance in support of the above contention has been placed on A.S Sulochana v. C. Dharmalingam (1987) 1 SCC 180.
5. 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 Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The undisputed facts in that case as observed in the judgment 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 respondent both had died and respondent was accepted as a tenant upon the death of his father in 1968. The suit for eviction on the ground of unlawful subletting 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 subtenancy 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 subtenancy 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 subletting 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 subtenancy, 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 subletting 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 distinguishable because the subtenancy was created in 1952 long before the Act which came into force in 1960.
6. So far as the facts of the case in hand before us are quite simple. Admittedly a subtenancy 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 subletting 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 subletting by a tenant without the consent in writing of the 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 Shalimar Tar Products Ltd. v. H.C Sharma (1988) 1 SCC 70. In the above case it was held:(, Notes)
“Sections 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 subletting. This requirement serves a public purpose i.e to avoid dispute 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.”
7. Apart from the circumstances mentioned above it has been further found established that the respondent-landlords had given a notice to the appellant to quit determining the tenancy on May 21, 1975. In reply to the aforesaid notice the tenant-appellant had not disclosed that by a deed of assignment dated June 21, 1974 in favour of Sujoy Kumar Dass Gupta subletting had been made. Thus this fact was not disclosed even in the reply to the notice as late as June 6, 1975. This fact regarding subletting to Sujoy Kumar Dass Gupta came to the notice of the landlord-respondent for the first time on September 15, 1975 when Sujoy Kumar Dass Gupta, the sublessee 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 Dass 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 subletting. Be that as it may, admittedly there is no compliance with 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.
8. In the result we find no force in the present appeal and it is accordingly dismissed with costs. In the facts and circumstances of the case we grant time to vacate the suit premises on or before April 30, 1993 on furnishing a usual undertaking before this Court within four weeks.