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PulIn Behari Pal Vs. Mahadeb Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 10 of 1980
Judge
Reported inAIR1981Cal61
ActsCode of Civil Procedure (CPC) , 1908 - Section 98; ;West Bengal Premises Tenancy Act, 1956 - Sections 13, 13(1), 17, 23 and 24; ;Evidence Act, 1872 - Section 115
AppellantPulIn Behari Pal
RespondentMahadeb Dutta and ors.
Appellant AdvocateAbhijit Kr. Banerji, Adv.
Respondent AdvocateS.C. Dasgupta, ;Tapan Sengupta and ;Amal Chatterjee, Advs.
DispositionAppeal dismissed
Cases Referred(Kartick Chandra v. Ganga Dutta
Excerpt:
- .....landlord has waived his right to get a decree under section 13 (1) (a) of the west bengal premises tenancy act because he accepted the rent from the tenant knowing fully well thatthe tenant has sub-let the premises in question without the previous consent of the landlord as incumbent under section 13 (1) (a) of the west bengal premises tenancy act.2. mr. banerjee on behalf of the appellant supported the judgment passed by the hon'ble mr. justice guha while mr. das gupta appearing for the respondent supported the view of the hon'ble mr. justice n. c. mukherjee. mr. banerjee contended that it has been found by both the hon'ble judges that the landlord knew of the existence of the sub-tenancy when he accepted the rent from the tenant and therefore has waived his right to file a.....
Judgment:
ORDER

P.K. Banerjee, J.

1. This appeal has been assigned to me by the Hon'ble Chief Justice on the difference of opinions of the Hon'ble Mr. Jus-lice N. C. Mukherji and the Hon'ble Mr. Justice S. M. Guha. The question for my consideration is whether the respondent landlord has waived his right to get a decree under Section 13 (1) (a) of the West Bengal Premises Tenancy Act because he accepted the rent from the tenant knowing fully well thatthe tenant has sub-let the premises in question without the previous consent of the landlord as incumbent under Section 13 (1) (a) of the West Bengal Premises Tenancy Act.

2. Mr. Banerjee on behalf of the appellant supported the judgment passed by the Hon'ble Mr. Justice Guha while Mr. Das Gupta appearing for the respondent supported the view of the Hon'ble Mr. Justice N. C. Mukherjee. Mr. Banerjee contended that it has been found by both the Hon'ble Judges that the landlord knew of the existence of the sub-tenancy when he accepted the rent from the tenant and therefore has waived his right to file a suit and get a decree under Section 13 (1) (a) of the Act. Mr. Banerjee argued that this is the benefit given to the landlord in case of the tenant sub-letting ft part or the whole of the premises in question. It is argued by Mr. Banerjee that in view of this waiver the landlord is not entitled to yet a decree under Section 13 (1) (a) of the West Bengal Premises Tenancy Act. Mr. Das Gupta however contended that the findings of both the Hon'ble Judges on the question of knowledge of the sub-tenancy by the tenant is wrong. In my opinion, when a reference is made to the third Judge on the difference of opinion on the question of law, it is not possible for Mr. Das Gupta to argue that the Hon'ble Judges' findings on; fact are wrong, inasmuch as, under Section 98 of the Code of Civil Procedure it is not open to the third Judge to go behind the question: of fact arrived at by both the Hon'ble Judges and under the said section only the question of law on the admitted fact can be referred to the third Judge for the disposal. The only consideration is, therefore, whether by acceptance of rent by the landlord after he: came to know of the sub-letting constitutes the waiver of his right to get a decree on the ground of Section 13 (1) (a) of the West Bengal Premises Tenancy Act, 1956.

3. Before I deal with the question raised it appears to me that Section 13 of the West Bengal Premises Tenancy Act. 1950 provides protection to tenant against eviction and no decree or order 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 grounds mentioned in the section. In Section 13 (1) (a) it has been provided that 'whether 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 sub-lets in whole or in part the premises held by him'. If the elements of Section 13 (1) (a) are present, then landlord isentitled to get a decree in his favour and the protection of the tenant against eviction will no longer be there. In the facts of this case, admittedly on findings of the Hon'ble Judges, there was no previous consent in writing by the landlord before the tenant assigned or sub-let in whole or in part the premises held under the landlord. In the present case the landlord is a purchaser from the original landlord. It is nobody's case that he sub-let the premises without (with?) previous written consent of the landlord but the case of the tenant is that as the landlord accepted the rent after coming to know of the sub-tenancy as such he has forfeited his right to get a decree of ejectment under Section 13 (1) (a) of the Act on the principle of waiver. The findings of both the Hon'ble Judges were that the plaintiff has knowledge of the assignment of sub-letting in favour of Sujoy Kumar Das Gupta much earlier than the last payment of rent on 31st January, 1975. Therefore the question is whether by acceptance of rent from him after the knowledge of sub-letting, the respondent has forfeited his right to get a decree of eviction under Section 13 (1) (a) of the West Bengal Premises Tenancy Act.

4. Before I deal with the difference of opinion of the Hon'ble Judges it will be convenient for me to set out Section 13 (1) (a) of the West Bengal Premises Tenancy Act which runs as follows:--

'13 (1) (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 sub-lets in whole or in part the premises held by him'.

The said Section 13 (1) (a) in Chapter III of the West Bengal Premises Tenancy Act affords protection to tenant against eviction. It is further made clear that notwithstanding anything to the contrary in any other law, the Court cannot decree or order for recovery of possession in respect of any premises in favour of the landlord against a tenant except on one or more of the grounds enumerated in Section 13 of the Act. In Clause (a) of Sub-section (1) of Section 13 the tenant is not protected when he has let out the premises to any person without previous consent in writing of the landlord; if the tenant assigns or sub-lets in whole or in part the premises held by him, then and then the landlord of the premises may be entitled to a decree from the competent Court for recovery of the possession. In my opinion, the question which has been raised and on which my Lords differ is whether this right or benefit conferred on the landlord can bewaived by him. In my opinion when the Legislature wanted that in an action for eviction the principle of waiver is to be attracted or not, the legislature has provided it in Sections 23 and 24 of the Act which are in the following terms :--

'23. Saving as to acceptance of rent.-- The withdrawal of rent deposited under Section 21, in the manner provided therein, shall not operate as an admission against the person withdrawing it of the correctness of the rate of rent, the period of default, the amount due, or of any other facts stated in the tenant's application for depositing the rent under the said section, nor shall it operate as a waiver of any notice to quit given by him to the tenant except a notice on the ground of default referred to in Clause (a) of Sub-section (1) of Section 13.

24. Where there shall be a waiver of default.-- When there is no proceeding pending in Court for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default'.

It appears to me that if a suit has been filed on any other grounds, the acceptance of rent will not operate as waiver of notice to quit given to the tenant by the landlord. The statute provided that, a tenant is protected from eviction unless the landlord makes out a ground for entitling him a decree of eviction as contained in Section 13 of the Act and the Legislature also makes it clear that a tenant who is a defaulter in payment of rent etc. must deposit the rent in arrears with interest and go on depositing the rent in favour of the landlord in the trial Court or with the Rent Controller or pay to the landlord himself under Section 17 of the Act otherwise the consequence will follow. If a proceeding is pending, even acceptance of rent is not penalised as waiver under Section 17 of the Act. In Section 24 it has been provided that when there is no proceeding pending in the Court for the recovery of the possession of the premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default. Therefore, in my opinion, when the Legislature wanted that the acceptance of rent may constitute a waiver it was specifically provided in the Act. Therefore in my opinion, the question of waiver is not at all relevant except where matter comes within the meaning of Sections 23 or 24 of the 1956 Act.

5. The Hon'ble Mr. Justice Guha relied on different decisions of the English Court as also some decisions of different High Courts on the question of waiver due to the acceptance of rent by the landlord after the notice. In the present case it has been found by the Hon'ble Judges as I have already stated that the plaintiff purchased the premises and knew that the tenant has sub-let the premises in question. It is also clear from the judgment of the Hon'ble Judges that the tenant did not take any consent in writing from the landlord before he sub-let the premises in question. On the face of it, therefore, the landlord is entitled to a decree under Section 13 (1) (a) of the West Bengal Premises Tenancy Act but if that knowledge of sub-tenancy constitutes waiver according to the Hon'ble Mr. Justice Guha, the landlord is not entitled to a decree, whereas the Hon'ble Mr. Justice N. C. Mukherjee was of the opinion that as the tenant could not prove the previous consent of the landlord in writing he is entitled to a decree. In a case reported in : AIR1977Cal122 (Mahasukrai Ramrichpal v. Kishori Charan Law), which is a Division Bench judgment, on which Mr. Justice N. C. Mukherjee relied, it has been held that the landlord does not waive his right to forfeiture under the provision of Section 108(m), (o) and (p) of the Transfer of Property Act. This judgment again was considered by a Full Bench judgment in the case reported in : AIR1980Cal70 and was approved by their Lordships of the Special Bench. In a case reported in : AIR1965Cal408 it has been held by the Division Bench of this Court that the landlord's right to get a decree under Section 13 (1) (a) of the Act will not be defeated though previous consent has not been taken but the landlord has accepted the rent after the knowledge of sub-tenancy. With due respect to the Hon'ble Mr. Justice S. M. Guha, I am inclined to agree with the view taken by the Hon'ble Mr. Justice N. C. Mukherjee.

6. In my opinion, however, the view expressed by my Lord the Hon'ble Mr. Justice Guha in this judgment wilt be a negation of the right of the landlord specifically conferred by the Act though the protection offered to the tenant under Section 13 (1) (a) is no longer available to him. In a case where the landlord is able to satisfy the Court that the defendant tenant has sub-let the premises without previous permission of the landlord that is to make the statutory provision ofSection 13 (1) (a) of the Act nugatory by invoking the principles of waiver.

7. In the case reported in : [1968]2SCR20 (Calcutta Credit Corpn. v. Happy Homes Ltd.) this question came for the consideration of the Supreme Court. The case reported in : [1968]2SCR548 (Associated Hotels of India v. Ranjit Singh) on which Mr. Banerjee relied, was a matter coming under Section 113 of the Transfer of Property Act in which it was stated that there can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. The case reported in : [1968]2SCR20 (Calcutta Credit Corpn. v. Happy Homes Ltd.) was a case on which the Supreme Court has considered the question of waiver. In the said case the Supreme Court held that 'the sub-tenant of statutory tenant is not entitled to protection under Section 13 (2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950'. In the said case the Supreme Court overruling the Full Bench judgment of our High Court reported in : AIR1961Cal505 held, inter alia, 'that a statutory tenant has no interest or estate in the premises occupied by him and it cannot be held that the Legislature without making an express provision to that effect intended to invest him with power to induct into the premises in his occupation a person who would be entitled to claim the right and interest of a contractual tenant. If the contrary view is accepted, a statutory tenant whose right of occupation is determined by a notice to quit, because of conduct which entails forfeiture of the protection of the Act, may induct a sub-tenant so as to defeat the claim of the landlord, and presumably a tenant sued for ejectment may also exercise that previlege, for the right if granted would ensure till a decree for ejectment is passed. The Legislature has not made any such express provision, and no provision to that effect which makes the right of the landlord conferred by the Act to obtain a decree for ejectment against his tenant wholly illusory may be implied'. This observation of the Supreme Court applies in the present case. If the view expressed by the Hon'ble Mr. Justice S. M. Guha is accepted, the provision to obtain a decree for ejectment against his tenant who has admittedly sub-let the premises without previous consent of the landlord in writing will be wholly illusory. Furthermore in the present case the admitted position is on which the Hon'ble Judges proceeded that there was no previous consentin writing by the landlord for the sub-tenancy created by the tenant. If the opinion expressed by my Lord the Hon'ble Mr. Justice Guha is accepted, then that will make the provision regarding the sub-tenancy nugatory and the landlord's right to get a decree for ejectment against his tenant becomes wholly illusory. In the case reported in : AIR1965Cal408 (Suraya Properties P. Ltd. v. B. Nath) it has been argued that even after the tenant has violated the provision of Sec-lion 108(p) of the Transfer of Property Act, by acceptance of rent the landlord has waived the right of forfeiture and on the ground of waiver of notice to quit no decree for ejectment can be passed; but the Division Bench of this Court did not accept the argument and held that the acceptance of rent after the knowledge of the violation of provision of Section 108(p) of the Transfer of Property Act itself will not be waiver of notice to quit. In the case reported in : AIR1956Cal120 (Kartick Chandra v. Ganga Dutta) it has been held that as for the acceptance of rent from the tenant who remains in possession by virtue of the statute would not be sufficient to create a tenancy between the parties. As for the landlord's assenting to the tenant's continuance of possession there should be any difference between the two positions, namely, where the landlord accepts rents and where the landlord assents to the tenant continuing in possession. If in the first case, no tenancy could be implied, I do not see why a tenancy would be implied in the second. In view of the decision hereinbefore stated, the acceptance of rent in the matter coming under the West Bengal Premises Tenancy Act, 1956, cannot constitute a waiver of right to get a decree for ejectment under Section 13 (1) (a) of the West Bengal Premises Tenancy Act. In that view of the matter, I agree with the view expressed by the Hon'blc Mr. Justice N. C. Mukherjce and respectfully disagree with the view expressed by the Hon'ble Mr. Justice Guha, that the appeal be allowed.

8. The matter may now be placed before the Hon'ble the Chief Justice for order that the matter may be placed before the appropriate Bench for disposal.

N. C. Mukherji, J.

9. In this matter, there was a difference of opinion on a point of law between myself and S. M. Guha J. and as such the matter was placed before the learned Chief Justice for necessary orders. The appeal was assigned to P. K. Banerjee J. by the learned Chief Jus-tice. P. K. Banerjee, J. delivered judgment on23-6-1980. In view of the judgment deliveredby P. K. Banerjee J., this appeal is dismissed.There will be no order for costs it his appeal.

10. Verbal prayer for stay of operationof the order is made. The same is refused.

Sudhindra Mohan Guha, J.

11. I agree.


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