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Sen and Co. Vs. Sm. Mani Mala Sadhu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1055 of 1977
Judge
Reported inAIR1980Cal155,84CWN455
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(3); ;Evidence Act, 1872 - Section 115; ;Transfer of Property Act, 1882 - Section 112
AppellantSen and Co.
RespondentSm. Mani Mala Sadhu
Appellant AdvocateBarun Kr. Roy Chowdhury, Adv.
Respondent AdvocateTapas Kr. Mukherji, Adv.
DispositionRevision allowed
Cases ReferredIn New Garage Ltd. v. Khushwant Singh
Excerpt:
- .....filed three applications-- one under section 17 (1) praying for permission to deposit the current rent since april 1974, the second application was filed disputing the relation of landlord and tenant, rate of rent and the amount in arrear, and the third one was filed praying for deposit of the amount in arrear, found by the court by easy instalments. all the three applications were allowed and the petitioner was directed to pay or deposit the arrear amount of rent at the rate of rs. 70 per month and also to pay or to deposit the current rent month by month within the 15th day of each succeeding month.3. in pursuance of the said order and in agreement between the parties the petitioner regularly paid the instalments as well as the current rent month by month to the learned advocate.....
Judgment:
ORDER

Sudhindra Mohan Guha, J.

1. This application for Revision is directed against the order dated 8th January 1977 passed by Shree S. C. Chakravorty, the learned Judge, 7th Bench, City Civil Court, Calcutta in Ejectment Suit No. 5 of 1974 allowing an application under Section 17 (3) of the West Bengal premises Tenancy Act 1956 and striking out the defence of the petitioner against ejectment.

2. The opposite party Sm. Mani Mala Sadhu instituted a suit being Ejectment Suit No. 5 of 1974 against the petitioner M/s. Sen and Company for recovery of possession of two rooms on the ground floor of the premises at 130, Balaram Dey Street, Calcutta. The tenancy was being held on a rental of Rs. 34.88 paise inclusive of electric charges. After appearance the petitioner filed three applications-- one under Section 17 (1) praying for permission to deposit the current rent since April 1974, the second application was filed disputing the relation of landlord and tenant, rate of rent and the amount in arrear, and the third one was filed praying for deposit of the amount in arrear, found by the Court by easy instalments. All the three applications were allowed and the petitioner was directed to pay or deposit the arrear amount of rent at the rate of Rs. 70 per month and also to pay or to deposit the current rent month by month within the 15th day of each succeeding month.

3. In pursuance of the said order and in agreement between the parties the petitioner regularly paid the instalments as well as the current rent month by month to the learned Advocate for the plaintiff opposite party on proper receipts. But the rent for the month of February 1976 and that for the month of March 1976 had been paid on 25-3-76 and 16-4-76 respectively to the learned Advocate for the opposite party who granted receipts for the same and filed joint petitions in Court acknowledging the said payments. But in spite of acceptance of the aforesaid payments the opposite party filed an application under Section 17 (3) of the Act for striking out the defence of the petitioner against ejectment. By an order dated 8-1-77 the application under Section 17 (3) of the Act was allowed.

4. On perusal of the receipts for the months of February and March 1976 it is found by the learned Judge that acceptance had been made without prejudice. Mr. Barun Kumar Roy Chow-dhury, the learned Advocate for the petitioner points out that the words 'without prejudice' were also on receipts for the payments which had been made within time, and as such those words in the receipts carried no sense and were of no importance. Mr. Tapas Kumar Mu-kherji, the learned Advocate for the opposite party as to the import of such words refers to the decision in the case of Umesh Jha v. The State, reported in AIR 1956 Pat 425, wherein it is held that the words 'without prejudice' import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not of themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid.

5. Next it is contended by Mr. Roy Chowdhury that the words 'without prejudice' might be in the receipts granted to the petitioner but the aforesaid payments were certified by the plaintiff opposite party by filing joint petitions in Court without any objection and in the circumstances the learned Court below failed to exercise its jurisdiction in not holding that it was no longer open to the plaintiff to complain of such belated payments. It would appear that it was argued that the plaintiff must be deemed to have waived his right to make such application accrued to her under Section 17 (3) of the Act, when she had accepted the rent and certified such payments to Court without objection Reliance was placed in the decision of a Division Bench of Patna High Court in the case Ranchood Lodha v. Madhabi Kanji, reported in : AIR1974Pat211 . But the learned trial Judge did not accept the argument on the ground that it was not shown that the provisions of the West Bengal Premises Tenancy Act 1956 were similar to Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. In addition Mr. Mukherji contends that there can be no waiver against the statute.

6. The term 'waiver' generally connotes some kind of voluntary knowing relinquishment of a right. It depends on the conduct of parties, so waiver may be expressed or implied. A party may forego its rights under a contract or under the provisions of a statute. Such a right may be released even by implication. Panna-lal v. Union of India, : AIR1957Cal156 .

7. In Venkataramiya's Law Lexicon Vol. II (1971) p. 1830 Waiver is said to be 'voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver, the party would have enjoyed.'

8. The American law on the subject was summarised in Prem's Judicial Dictionary Vol. 4 (1964) p. 1675 thus :-- 'The doctrine of the waiver can be invoked when the constitutional or statutory power or guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right. But if the privilege conferred or the right created by the statute is solely for the benefit of the individual he can waive it. But even in these cases, the Courts invariably administered a caution that having regard to the nature of the right some precautionary and stringent conditions should be applied before the doctrine is invoked or applied.'

9. As to the principle applied in our country it is said that as a general rule, rights relating to procedure and remedy are subject to waiver, but if a right is so fundamental in its nature as to be regarded by the State as vitally integrated in immemorially established processes of the administration of justice, it cannot be waived by any one.

10. Exactly such was the view at Maxwell as we find in Maxwell on the Interpretation of Statutes--12th Edition --by P. St. J. Langan p. 328. It is stated that every one has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Cuilibet licet renuntiare juri pro se introducto, the maxim referred by Maxwell.

11. This maxim was interpreted in the Interpretation of Statutes by N. S. Bindra, 6th Edition, p. 133, 'Any one may waive or renounce the benefit of a principle or Rule of Law that exists only for his protection'. Every one has a right to waive and agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.

12. In order to meet the contention that there can be no waiver against the statute reference may be made to 'The law relating to Estoppel by Representation' by Spencer Bower and Turner--2nd Edition (1966) p. 134, where a statute requires something to be done by one of the parties to an instrument or transaction as a condition of its validity, which, therefore, is not made by the statute absolutely illegal and void in itself, but only contingently. So, it may be contended with considerable force that there is no reason why the party entitled to insist on a fulfilment of the statutory condition should not be allowed to waive his right, either by express agreement or consent or by acts or conduct having the effect of precluding him from asserting the illegality of the instrument or transaction an effect which can be nothing less than a form of estoppel.

13. But at the same time it should be remembered 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. Associated Hotels of India v. Ranjit Singh, : [1968]2SCR548 .

14. a waiver, therefore is the result of an intentional relinquishment of a known right. Such was also the view of this Court in Dhanukdhari Singh v. Na-thima Sahu, (1907) 11 Cal WN 848 at 852.

15. Having regard to the principle discussed above it can be said without hesitation that the acceptance of rent without objection or grievance by the landlord after the forfeiture of a lease or in the event of failure to do a statutory obligation by a tenant would amount to waiver. In New Garage Ltd. v. Khushwant Singh, a Divisional Bench held 'If the lessor is aware of a continuing breach by the lessee and acquiesces in it for a long period, where for instance, with full knowledge he receives rent, it will be presumed that he has either released the covenant or granted a licence for the user.'

16. In this case the rent for the months of February 1976 and March 1976 had been accepted on 25-3-76 and 16-4-76 respectively and the application under Section 17 (3) of the Act was filed on 12-6-76. But the rent for April 1976 was accepted on 15-5-76, that for May 1976, on 13-6-76 that for June 1976 on 14-7-76, that for July on 15-8-76, that for August 76 on 15-9-76, that for September 76 on 14-10-76, that for October 76, on 15-11-76, that for November 76, on 15-12-76. Thereafter the defence against ejectment was struck down on 8-1-1977.

17. If a party goes on dealing in the matter, just as though everything had been duly done or if it does not insist upon something being done, the natural and inevitable conclusion from his conduct would be that he has waived or dispensed with the doing of it. In such a case he cannot afterwards come up with the plea that it was not done. It would further appear from the foregoing discussions a party would be at liberty waiving any right he may have under any statute unless the benefit is conferred by a statute which has public policy for its object. An acceptance of rent to operate as a waiver of forfeiture, must be in respect of rent which had accrued since the breach of the covenant or failure in compliance with a provision of the statute which resulted in the forfeiture.

18. Thus with due respect to their Lordships of the Punjab High Court and Patna High Court I am fully in agreement with the views reported in and : AIR1974Pat211 and I hold that the opposite party having failed to raise any objection while filing applications in Court certifying payments for the months of February and March 1976 and having accepted rent thereafter for subsequent months must be presumed to have waived the right of having the written statement of the petitioner against ejectment struck out under the provision of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956

19. In the result this application for Revision is allowed and the Rule is made absolute. The impugned order dated 8-1-77 striking out the defence is set aside. There would be no order as to costs.


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