{"id":124789,"date":"1993-02-03T00:00:00","date_gmt":"1993-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pulin-behari-lal-vs-mahadeb-dutte-and-ors-on-3-february-1993"},"modified":"2015-06-08T19:00:34","modified_gmt":"2015-06-08T13:30:34","slug":"pulin-behari-lal-vs-mahadeb-dutte-and-ors-on-3-february-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pulin-behari-lal-vs-mahadeb-dutte-and-ors-on-3-february-1993","title":{"rendered":"Pulin Behari Lal vs Mahadeb Dutte And Ors on 3 February, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Pulin Behari Lal vs Mahadeb Dutte And Ors on 3 February, 1993<\/div>\n
Equivalent citations: 1993 SCR (1) 472, \t 1993 SCC (1) 629<\/div>\n
Author: N Kasliwal<\/div>\n
Bench: Kasliwal, N.M. (J)<\/div>\n
           PETITIONER:\nPULIN BEHARI LAL\n\n\tVs.\n\nRESPONDENT:\nMAHADEB DUTTE AND ORS.\n\nDATE OF JUDGMENT03\/02\/1993\n\nBENCH:\nKASLIWAL, N.M. (J)\nBENCH:\nKASLIWAL, N.M. (J)\nKULDIP SINGH (J)\n\nCITATION:\n 1993 SCR  (1) 472\t  1993 SCC  (1) 629\n JT 1993 (1)   341\t  1993 SCALE  (1)255\n\n\nACT:\nWest Bengal Premises Tenancy Act 1956--Sections 13 and\t16--\nEviction  on the ground of sub-letting- Previous consent  in\nwriting\t of  the  landlord  for\t creation  of  sub-tendancy-\nNecessary.\nHouse Rent  Eviction on the ground of default in payment of\nrent and sub-letting- Question of waiver- nether  acceptance\nof  rent  after having knowledge of sub-letting\t amounts  to\nwaiving.\n\n\n\nHEADNOTE:\nThe appellant was the tenant with respect to shop room on  a\nmonthly\t rent  of  Rs. 50.  On\t27th  September,  1973,\t the\nrespondent  purchased  the  premises in\t question  from\t the\nCommissioner  of  Partition  and  Receiver  in\ta  suit\t for\npartition  between  the owners of the  said  premises.\t The\nappellant  tenant was notified about the sale and was  asked\nto pay rent to the respondents.\nThe respondents filed a suit for ejectment on 12th December,\n1975  in  the City Civil Court on the ground of\t default  In\npayment\t of rent and sub-letting.  The Trial  Court  decreed\nthe suit on the ground of sub-letting.\tThe appellant  flied\nan appeal before the High Court against the judgement of the\nTrial Court.\nThe  Judges  of the Division Bench of the  High\t Court\ttook\ndivergent  views.  While one Judge held that  the  plaintiff\nhaving accepted the rent even after having the knowledge  of\nsubletting  plaintiff  had waived or  dispensed\t with  their\nright  of forfeiture and as such directed the  dismissal  of\nthe  plaintiffs suit, the other Judge took a  contrary\tview\nthat  under the West Bengal Premises Tenancy Act,  1956,  a\ntenant\twas under an obligation to pay rent to the  landlord\nand there was no question of waiving the right of forfeiture\nby accepting the rent by the landlord.\nIn  view the difference of opinion between the\ttwo  judges,\nthe matter was referred to a third teamed Judge, who  agreed\nwith  the  latter view.\t Thus the appeal  preferred  by\t the\ntenant was dismissed, against which the 472\n473\npresent appeal by special leave was filed.\nDismissing the appeal, this Court,\nHELD  : 1.01. A perusal of the provisions of Section 13\t and\n16 of the Act clearly shows that when there was no  previous\nconsent\t in  writing of the landlord for  creation  of\tsub-\ntenancy\t It  shall  be a ground for  eviction  in  terms  of\nSection\t 13(1)(a)  of the Ad.  Even in case of\tcreation  of\nsub-tenancy  with the consent of the landlord in writing  it\nwas  necessary\tto follow the  future  procedure  prescribed\nunder\tsection\t 16(1)\tof  the\t Act.\tMere  knowledge\t  or\nacknowledgement\t of rent cannot defeat the landlord's  right\nto get a decree for ejectment on the ground of\tsub-letting.\nIf  the\t view  as contended on behalf of  the  applicant  is\naccepted the provisions of both the sections 13 and 16 would\nbecome nuptory. [476E-F]\n1.02.There  Is a clear mandate in Section 13(1)(a) that\t the\nprotection  against  eviction  to the tenant  shall  not  be\navailable in case the tenant transfers, assigns or  sub-lets\nin  whole  or in part the premises held by him\twithout\t the\nprevious consent in writing of the landlord. [476F]\n1.03.\t  Waiver is a question of fact which depends on\t the\nfacts and circumstances of each case.  In case of waiver  of\nany provisions of the Statute it Is necessary to prove\tthat\nthere was conscious relinquishment of the statutes. [478D]\n1.04.\t  In  the  instant  case there\tis  no\tquestion  of\nwaiver.\t It was necessary for the tenant appellant to  prove\nthat  the  landlord  had  accepted  the\t rent  being   fully\nconscious  that\t by their act they  were  relinquishing\t the\nright  of eviction available to them on the ground  of\tsub-\nletting under Section 13(1)(a) of the Act. [478E]\n1.05.\t  Any  acceptance  of  rent from  the  appellant  in\nJanuary, 1975 cannot amount to any waiver in respect of rent\nfrom  the  appellant in January, 1975 cannot amount  to\t any\nwaiver in respect of the right of eviction on the ground  of\nsub-letting. [479D]\nM\/s Shalimar Tar Products Ltd. v. H.C Sharma & Ors.,<\/a>  [1988]\n1 SCC 70, relied on.\n474\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2629  of
\n1980.\n<\/p>\n
From  the  Judgment and Order dated 17.3.80\/25.7.80  of\t the
\nCalcutta High Court in Original Decree No. 10 of 1980.
\nDr. Shankar Ghosh, Somnath Mukherjee and P.K. Mukherjee\t for
\nthe Appellant.\n<\/p>\n
Rathin Das for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nKASLIWAL,  J. This is a tenant’s appeal by grant of  Special
\nLeave in a suit for eviction decreed against him by all\t the
\nCourts.\n<\/p>\n
The  appellant\ttook one road side shop room in\t the  ground
\nfloor  of  premises  No. 75, Surendra  Nath  Banerjee  Road,
\nCalcutta on rent @ Rs.50 per month.  On 27th September, 1973
\nthe  respondents herein purchased the premises\tin  question
\nfrom  the  Commissioner of Partition and  Receiver  in\tHigh
\nCourt  Suit  No.  1183 of 1961 (Anuo  Kumar  Dhar  v.  Satya
\nNarayan Dhar & Ors.), a suit for partition etc., between the
\nowners\tof  the\t said premises.\t The  said  Commissioner  of
\nPartition and Receiver notified the appellant about the said
\nsale  and asked him to attorney his tenancy and to pay\trent
\nto  the respondents.  The appellant as such  started  paying
\nrent  to the respondent purchasers till January,  1975.\t  On
\n21st  May,  1975 the respondent landlords sent a  notice  to
\nquit  on  the ground of default in the payment of  rent\t and
\nsubletting.   The appellant sent a reply in writing  on\t 6th
\nJune, 1975 denying the alleged default in payment of rent as
\nwell  as  subletting.\tThe respondents\t filed\ta  suit\t for
\nejectment on 12th December, 1975 in the City Civil Court  at
\nCalcutta (IIIrd Bench).\t The suit was based on the ground of
\ndefault\t in the payment of rent and subletting.\t  The  trial
\ncourt decided the question of default in the payment of rent
\nin  favour  of\tthe appellant but decided  the\tquestion  of
\nsubletting  against  him  and as such decreed  the  suit  by
\nJudgment  dated\t 12th June, 1979.  The\tappellant  aggrieved
\nagainst\t the aforesaid Judgment filed an appeal\t before\t the
\nHigh Court.\n<\/p>\n
A  Division  Bench  of the High\t Court\tconsisting  of\tN.C.
\nMukherji  and  Surendra Mohan Guha, JJ.\t heard\tthe  appeal.
\nGuha,\tJ.  held  that\tthe  plaintiffs\t had  knowledge\t  of
\nassignment or subletting in favour of Sujoy
\n475<\/span>
\nKumar Dass Gupta much earlier than the last payment of\trent
\nin January, 1975.  In this view of the matter Guha, J.\theld
\nthat  the rent having been accepted after the  knowledge  of
\nsubletting  long  before  the  determination  tenancy,\t the
\nnatural\t inference  from  this conduct\twould  be  that\t the
\nplaintiffs  had\t waived\t or dispensed with  their  right  of
\nforfeiture.   Guha,  J.\t as such  accepted  the\t appeal\t and
\ndirected  the  dismissal  of  the  plaintiff’s\tsuit.\tN.C.
\nMukherji,  J. disagreed with the aforesaid view of Guha,  J.
\nand  according\tto him the tenant’s  liability\tto  eviction
\narose  under  the  West Bengal Premises\t Tenancy  Act,\t1956
\n(hereinafter  referred\tto as ‘the Act’) once  the  fact  of
\nsubletting  was proved.\t According to Mukherji, J. a  tenant
\nunder  the  Act was under an obligation to pay rent  to\t the
\nlandlord  and there was no question of waiving the right  of
\nforfeiture  by accepting the rent by the landlord.  In\tview
\nof the difference of opinion between the-two Learned  Judges
\nthe  matter was referred to third Learned Judge.   Mr.\tP.K.
\nBanerjee  J., The.. third Learned Judge by his\torder  dated
\n23rd  June, 1980 agreed with the view of N.C.  Mukherji,  J.
\nThe  majority  view  being  in\tfavour\tof  the\t  respondent
\nlandlords,  the appeal was ultimately dismissed by the\tHigh
\nCourt by order dated 25th July, 1980.  Aggrieved against the
\nJudgment of the High Court, the tenant has come in appeal to
\nthis  Court.  We have heard Learned counsel for the  parties
\nand  have gone through the record.  The trial court as\twell
\nas  all\t the Learned Judges including Guha, J. in  the\tHigh
\nCourt  have  recorded a finding of fact that  there  was  no
\nprevious  consent  in writing by the landlord for  the\tsub-
\ntenancy\t created by the tenant appellant.  This\t finding  of
\nfact  is  binding on the appellant and\tcannot\tbe  assailed
\nbefore this Court.  The only question on which Guha, J. held
\nin  favour of the tenant appellant was that the rent  having
\nbeen  accepted\tafter  the  knowledge  of  sub-letting,\t the
\nnatural\t inference  from  this conduct\twould  be  that\t the
\nlandlords had waived the right of claiming eviction  against
\nthe  tenant.  In our view in the facts and circumstances  of
\nthe present case the aforesaid view taken by Guha, J. is not
\ncorrect.  A perusal of the provisions of Sections 13 and  16
\nof  the Act make the position clear.  The relevant  portions
\nof the aforesaid provisions are reproduced as under:-
\nSection 13  Protection of tenant against eviction
\n(1)  Notwithstanding  anything to the contrary in any  other
\nlaw,  no order or decree for the recovery of  possession  of
\nany  premises  shall be made by any Court in favour  of\t the
\nlandlord  against  a  tenant except on one or  more  of\t the
\nfollowing groups, namely:-\n<\/p>\n
476<\/span><\/p>\n
\t      (a) Where the tenant or any person residing in
\n\t      the
\n\t      premises\tlet  to\t the  without  the  previous
\n\t      consent in writing of the landlord  transfers,
\n\t      assigns  or  sublets in whole or in  part\t the
\n\t      premises held by him;\n<\/p><\/blockquote>\n
\t      Section 16  Creation and termination of  sub-
\n\t      tenancies to be notified-\n<\/p><\/blockquote>\n
(1)  Where after the commencement of this Act, any  premises
\nare  sublet either in whole or in part by, the\ttenant\twith
\nthe previous consent in writing of the landlord, the  tenant
\nand  every sub-tenant to whom the premises are sublet  shall
\ngive notice to the landlord in the prescribed manner of\t the
\ncreation  of sub-tenancy within one month from the  date  of
\nsuch  subletting and shall in the prescribed  manner  notify
\nthe termination of such subtenancy within one month of\tsuch
\ntermination.\n<\/p>\n
(2)  Where before the commencement of this Act,\t the  tenant
\nwith or without the consent of the landlord, has sublet\t any
\npremises  either in whole or in part, the tenant  and  every
\nsub-tenant to whom the premises have been sublet shall\tgive
\nnotice to the landlord of such subletting in the  prescribed
\nmanner\t(within six months) of the commencement of this\t Act
\nand shall in the prescribed manner notify the termination of
\nsuch-tenancy within one month of such termination.
\nA  perusal  of the above provision clearly  show  that\twhen
\nthere was no previous consent in writing of the landlord for
\ncreation of sub-tenancy it shall be a ground for eviction in
\nterms  of  Section  13(1)(a) of the Act.  Even\tin  case  of
\ncreation  of  such  sub-tenancy\t with  the  consent  of\t the
\nlandlord  in writing it was necessary to follow the  further
\nprocedure  prescribed under Section 16(1) of the Act.\tMere
\nknowledge  and\/or  acceptance  of  rent\t cannot\t defeat\t the
\nlandlord’s right to get a decree for ejectment on the ground
\nof  sub-letting.  If the view as contended on behalf of\t the
\nappellant  is  accepted\t the provisions of  both  the  above
\nsections 13 and 16 would become nugatory.  There is a  clear
\nmandate\t in  Section 13(1)(a) that  the\t protection  against
\neviction  to the tenant shall not be available in  case\t the
\ntenant transfers, assigns or sublets in whole or in part the
\npremises held by him without the previous consent in writing
\nof  the landlord.  It was contended by the  learned  counsel
\nfor the appellant that the provision as regards consent\t may
\nbe  treated as mandatory but so far as the writing  part  of
\nthe  consent  is  concerned  the  same\tmay  be\t treated  as
\ndirectory.   It was also contended that in the present\tcase
\nthe sub-tenancy was created in 1970
\n477<\/span>
\neven before the purchase of the suit premises by the present
\nplaintiff\/landlords on 27th September, 1973 and in this view
\nof the matter the present plaintiff\/landlords cannot file  a
\nsuit for eviction on the ground of sub-letting under Section
\n13(1)(a).   Reliance in support of the above contention\t has
\nbeen placed on A.S. Sulochna v. C Dharmalingam, [1981] 1 SCC\n<\/p>\n
180.
\nWe  find no force in the above contention.  The\t above\tcase
\nrelied\ton  by\tthe Learned counsel  for  the  appellant  is
\naltogether  distinguishable.   In  that\t case  the  relevant
\nprovision for consideration was Section 10 (2)(ii)(a) of the
\nTamilnadu Buildings (Lease and Rent Control) Act, 1960.\t The
\nundisputed  facts in that case as observed in the  Judgement
\nwere that the father of the appellant landlord had granted a
\nlease in favour of the father of the respondent tenant prior
\nto  1952. The father of the appellant as also the father  of
\nthe respondent both had died and respondent was accepted  as
\na tenant upon the death of his father in 1968.\tThe suit for
\neviction on the ground of unlawful sub-letting was filed  in
\n1970  by the appellant who had inherited the  property\tfrom
\nher  father.   Admittedly,  neither the\t appellant  nor\t the
\nrespondent  had any personal knowledge about the  terms\t and
\nconditions of the lease nor they had any personal  knowledge
\nregarding  the\tcircumstances  in which the  father  of\t the
\nrespondent  tenant  had created a sub-tenancy  way  back  in
\n1952, 18 years before the institution of the suit.   Neither
\nthe  appellant nor respondent had any personal knowledge  as
\nto  whether  or\t not the sub-tenancy was  created  with\t the
\nwritten\t consent of the landlord 18 years back in 1952.\t  On
\nthese facts it was held that there was nothing on record  to
\nshow that the sub-letting which was made 18 years before the
\ninstitution  of\t the suit was in violation of  the  relevant
\nprovisions  of\tlaw.   There  was  no  evidence\t direct\t  or
\ncircumstantial\ton the basis of which it could be said\tthat
\nthe lease did not confer on the father of the respondent the
\nright to create a sub-tenancy, or, that it was done  without
\nwritten\t consent  of the then landlord that is to  say,\t the
\nfather\tof  the\t appellant.   Thus in  the  above  case\t the
\nplaintiff  landlord  had  inherited the\t property  from\t her
\nfather and had brought a suit for eviction on the ground  of
\nsub-letting  which was created 18 years prior to  the  suit.
\nThis Court held that the flouting of the law, the sin  under
\nthe  Rent  Act must be the sin of the tenant  sought  to  be
\nevicted,  and  not  that of his\t father\t or  predecessor  in
\ninterest.  Respondent inherited the tenancy, not the sin, if
\nany,  of his father.  The law in its wisdom seeks to  punish
\nthe  guilty  who  commits the sin and not  his\tson  who  is
\ninnocent of the rent law offence.  The above case is further
\n478<\/span>
\ndistinguishable because the sub-tenancy was created in\t1952
\nlong before the Act which came into force in 1960.
\nSo far as the facts of the case in hand before us are  quite
\nsimple.\t  Admittedly a sub-tenancy has been created in\t1970
\nwithout consent in writing of the previous landlord and\t the
\nonly question for consideration is whether any waiver can be
\napplied\t against the present landlords merely on account  of
\naccepting rent till January, 1975.  The third Learned  Judge
\nof  the High Court has relied on the provisions of  sections
\n23  and 24 of the Act in order to hold that the question  of
\nwaiver\tis only restricted under the aforesaid two  sections
\nwhich  deal  with the question of accepting  rent  deposited
\nunder  Section\t21  in the Court or acceptance\tof  rent  in
\nrespect\t of the period of default in payment of\t rent  where
\nthere is no proceeding pending in the Court for the recovery
\nof possession of the premises.\tIn our view there is no need
\nof  restricting the question of waiver under the  provisions
\nof  sections 23 and 24 only which deal with special kind  of
\nsituation.   We\t are  considering  the\tquestion  of  waiver
\nindependently  of the provisions of the Act and it would  be
\nclear  that  there is no question of waiver in\tthe  present
\ncase.\tWaiver\tis a question of fact which depends  on\t the
\nfacts and circumstances of each case.  In the case of waiver
\nof  any provisions of the Statute it is necessary  to  prove
\nthat there was conscious relinquishment of the advantage  of
\nsuch  provisions  of  the Statute.  In\tthe  case  like\t the
\npresent\t one  before  us, it was necessary  for\t the  tenant
\nappellant to prove that the landlords had accepted the\trent
\nbeing\tfully\tconscious  that\t by  this  act\t they\twere
\nrelinquishing the right of eviction available to them on the
\nground\tof sub-letting under Section 13(1) (a) of  the\tAct.
\nThe  Rent  Act is for the protection of the  rights  of\t the
\ntenants\t but  at the same time it does not permit  the\tsub-
\nletting\t by a tenant without the consent in writing  of\t the
\nlandlord and this provision has been kept in public interest
\nfor  the benefit of the landlords and the same can  only  be
\nnegatived  by  an act of conscious  relinquishment  of\tsuch
\nright by the landlord.\tWe find support in the above view in
\na  decision of this Court in M\/S Shalimar Tar Products\tLtd.
\nv.  H. C. Sharma and Other,<\/a> [1988] 1 SCC 70.  In  the  above
\ncase it was held that:,
\n\t      “Section 14 (1) proviso (b) and 16(2) and\t (3)
\n\t      of  the  Delhi  Rent Control  Act\t enjoin\t the
\n\t      tenant  to  obtain  consent  of  the  landlord
\n\t      in–writing to the specific Sub-letting.\tThis
\n\t      requirement seraves a public purpose i.e.\t to
\n\t      avoid dispute
\n\t      479<\/span>
\n\t      as  to whether there was consent or not.\t The
\n\t      mere permission or acquiescence is not enough.
\n\t      There  is\t no implied permission.\t  Any  other
\n\t      interpretation  of the provisions will  defeat
\n\t      the  object of the statute and is,  therefore,
\n\t      impermissible”.\n<\/p>\n
Apart  from  the circumstances mentioned above it  has\tbeen
\nfurther\t found established that the respondent landlord\t had
\ngiven  a  notice to the appellant to  quit  determining\t the
\ntenancy on 21st May, 1975.  In reply to the aforesaid notice
\nthe  tenant  appellant had not disclosed that by a  deed  of
\nassignment dated 21st June 1974 in favour of Sujoy Kumar Das
\nGupta  sub-letting  had been made.  Thus this fact  was\t not
\ndisclosed  even\t in  the  reply to the\tnotice\tas  late  as
\n6.6.1975. This fact regarding sub-letting to Sujoy Kumar Das
\nGupta came to the notice of the landlord respondent for\t the
\nfirst  time  on 15th September, 1975 when  Sujoy  Kumar\t Das
\nGupta,\tthe  Sub lessee himself sent a\tnotice\tthrough\t his
\nSolicitor  intimating  to  the\trespondent  landlords\tthat
\npartnership  between  Shri  Gupta  and\tappellant  had\tbeen
\ndissolved.   In the said notice it had been stated that\t the
\nappellant  Pulin  Behari  Pal due to old  age  and  physical
\ninfirmities had become unable to discharge his duties in the
\npartnership  business and as such had transferred,  assigned
\nall  his interest, goodwill of the business and\t his  right,
\ntitle  and interest to the said Sujoy Das  Gupta  absolutely
\nand forever.  Thus any acceptance of rent from the appellant
\nPulin  Behari  Pal  in January, 1975 cannot  amount  to\t any
\nwaiver in respect of the right of eviction on the ground  of
\nsub-letting.   Be  that as it may, admittedly  there  is  no
\ncompliance  of Section 16 also in the present case and\tthis
\nis  an\tadditional factor on the basis of which\t the  tenant
\nappellant cannot escape the liability of eviction.
\nIn the result we find no force in the present appeal and  it
\nis   accordingly  dismissed  with  costs.   In\t facts\t and
\ncircumstances  of the case we grant time to vacate the\tsuit
\npremises  on  or before 30th April, 1993  on  furnishing  an
\nusual undertaking. before this Court within four weeks.
\nB.V.B.D.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
480<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Pulin Behari Lal vs Mahadeb Dutte And Ors on 3 February, 1993 Equivalent citations: 1993 SCR (1) 472, 1993 SCC (1) 629 Author: N Kasliwal Bench: Kasliwal, N.M. (J) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-124789","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPulin Behari Lal vs Mahadeb Dutte And Ors on 3 February, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pulin-behari-lal-vs-mahadeb-dutte-and-ors-on-3-february-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pulin Behari Lal vs Mahadeb Dutte And Ors on 3 February, 1993 - 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