G.N. Ray, J.
1. This appeal is directed against the judgment and decree passed by the learned Chief Judge, City Civil Court, Calcutta in Ejectment Suit No. 885 of 1976. The defendant is the appellant in the instant appeal and the said suit was instituted by the plaintiff respondent for eviction of the defendant from the disputed premises in question on the ground of subletting and also on the ground of default. Prior to the institution of the suit, the tenancy of the defendant was determined by a notice to quit.
2. It is the case of the plaintiff-respondent that the defendant is a public limited company constituted and incorporated under the Companies Act and previously, one Sri Rabindra Kumar Kapur was a tenant under the plaintiff in respect of Flat No. 14, on the first floor of the premises No. 42B, Shakrspeare Sarani (previously known as Theatre Road). The said Kapur was an employee of Associated Battery Makers (Eastern) Limited and was a tenant at a monthly rent of Rs. 700/- payable according to English Calendar month. The said Associated Battery Makers (Eastern) Limited Co. was subsequently changed as Chloride India Limited. The tenancy in the name of Rabindra Kapur was transferred in the name of the defendant company by an agreement between the parties and the rent was fixed at Rs. 800/- per month payable according to English Calendar Month and other terms and conditions which had existed between Rabindra Kapur and the plaintiff remained unchanged when the tenancy was transferred in the name of the defendant company. The plaintiff has further contended that the defendant had sublet the said premises to one Mr. A. M. Khan. Manager of Sonali Bank of Bangladesh and as such, the tenancy was liable to be terminated. It is also the case of the plaintiff that if the defendant had defauted in payment of rent in respect of the premises in question, the tenancy was liable to be terminated. The said suit was contested by the defendant company by filing a written statement inter alia, denying the allegations made in the plaint. The company admitted that it was a tenant under the plaintiff and had also acknowledged the receipt of the notice determining the tenancy but disputed the legality and validity of the same. The defendant company contended that it had not sublet or transferred to any person and had not defaulted in payment of rent. It was contended that as the plaintiff refused to accept the rent, the defendant had deposited the rent for the months of June and July 1975 with statutory interest under Section 17(1) of the West Bengal Premises Tenancy Act and thereafter had deposited the current rents, month by month.
3. An employee of the plaintiff firm was examined on behalf of the plaintiff and the said witness had stated that the defendant had sublet the suit premises to one Mr. A. M. Khan, Manager. Sonali Bank of Bangladesh, without the prior written consent of the plaintiff. It was stated by the said witness that the plaintiff had come to know about the said unauthorised subletting from a letter written by Shalimar Apartment Managing Committee to the defendant company, a copy whereof was also forwarded to the plaintiff. The said ietter is exhibit 11 and it appears from the said letter that Mr. A. M. Khan, Manager Sonali Bank of Bangladesh was the occupant of the disputed flat No. 14 and although he had vacated the said flat, he had not paid the electricity bill which remained outstanding. The said witness had further stated that on enquiry it was ascertained that Mr. A. M. Khan occupied the said flat from June 1974 to Jan. 1975. The Assistant Manager of Legal Affairs of the defendant company was examined and the said witness had stated in his cross examination that the flat had not been sublet to the plaintiff and the said Mr. A. M. Khan had been in occupation purely on temporary basis from June 1974 to Jan. 1975. But in cross examination he said that the defendant company had been realising a sum of Rs. 1200/- or 1250/- per month from the said Khan but could not depose with reference to the records as to whether said amount had been realised by way of rent. It, however, appears from the copy of the entries from the account of Sonali Bank that the rent had been paid regularly by the said bank at the rate of Rs. 1250/- per month and the said copy is exhibit 10.
4. The learned Chief Judge, City Civil Court, after considering the materials on records and the evidence adduced by the parties had come to the finding that although the defendant had defaulted in payment of rent, no decree for eviction could be passed because of the deposit of the arrears of rent and the current rent in accordance with the provisions of Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act. The learned Judge had further come to the finding that the defendant had sublet the said premises from June 1974 to Jan. 1975 and although the tenant came with a case of leave and licence granted to Mr. A. M. Khan for a period of three months but it failed to establish the terms and conditions under which further occupation was allowed to the said Mr. Khan and as such there would be a presumption of tenancy given to Mr. Khan by the defendant company. The learned Judge found that the tenancy had been duly determined by a valid notice to quit. In view of the said findings, the suit was decreed, and the instant appeal has been preferred by the defendant company.
5. Mr. Banerjee, learned Counsel appearing for the appellant has submitted that from the letter exhibit No. 1 written by the Director and Secretary of Chloride India Ltd. to Mr. A. M. Khan it is evident that the said flat was allowed to be occupied on a leave and licence basis for a temporary period of three months. Mr. Banerjee has submitted that although in the said letter it has been stated that the monthly rent was Rs. 1250/-, the said expression 'rent' will not render the said leave and licence as a sublease. Mr. Banerjee has also contended that although the initial period was extended for several months up to Jan. 1975. such extension by itself does not establish that a sublease was granted in favour of the said Mr. Khan, Mr. Banerjee has contended that unfortunately, the learned Judge has drawn an adverse inference against the defendant company and has proceeded on the footing that a sublease has been granted because the defendant company could not produce any document showing the terms and conditions for extension of the period of occupation and in the circumstances it should be presumed that such extension was made by an agreement of lease. Mr. Banerjee has contended that such finding was not warranted and the same has been made on surmise and conjecture.
6. Mr. Banerjee has also contended that it has been pleaded by the plaintiff that the plaintiff had come to know about the subletting in Mar. 1975 from the letter of the Shalimar Apartment Managing Committee. The said fact has also been admitted by the witness examined on behalf of the plaintiff but in spite of such subletting, the plaintiff accepted the rent for the month of April 1975. Accordingly, it must be held that the plaintiff had waived the right of determining the tenancy on the score of subletting. In support of this contention. Mr. Banerjee has referred to a decision of the Supreme Court made in the case of Gajanan Datta v. Sher Banu Hosang Patel reported in : 1SCR535 . The Supreme Court had considered the case of subletting in the said case under the Bombay Rents Hotel & Lodging House Rates Control Act, 1947. It appears that in the said case when the suit for eviction was instituted by the landlord, the sub-tenant had vacated the disputed premises and it was contended that as there was no subletting at the time of the institution of the suit, the suit itself was no longer maintainable on the ground of subletting. The Supreme Court held that the tenants' liability to eviction would arise once the fact of unlawful sub-tenancy would be proved. Once it is proved that on the date of the notice there was unlawful subletting, the tenant is liable to be evicted. Mr. Banerjee has submitted that admittedly on the date of serving the notice determining the tenancy, the said A. M. Khan had vacated the suit premises. Hence even if there was any subletting, such subletting came to an end when the notice for determining the tenancy was given. He has, therefore, submitted that when the subletting was not in existence on the date of giving the notice, prior subletting even if any, was of no consequence. Mr. Banerjee has also contended that as there was no cause of action for eviction on the score of subletting when the notice was given, the said notice must be held to be bad in law.
7. Mr. Bhabra, learned Counsel appearing for the respondent has submitted that once a subletting by a tenant without the consent of the landlord is established the landlord has a right to determine the tenancy on the scope of subletting and it is not necessary that on the date of giving the notice determining the tenancy, such subletting will he subsisting. He has submitted that the Supreme Court in Gajamm's case has in fact held that the tenants' liability to eviction arises if the fact of unlawful subletting is proved.
8. Mr. Bhabra has further contended that the acceptance of rent for the month of April 1975 by the landlord cannot amount to waiver of the right of landlord to evict the tenant on the ground of subletting. For this contention. Mr. Bhabra has referred to a decision of this Court made in the case of Pulin Behari Pal v. Mahadeb Dutt reported in : AIR1981Cal61 . It appears that in the said case rent was accepted by the landlord even after the knowledge of subletting by the tenant. The question arose as to whether or not in such circumstances, it should be held that the landlord had waived his right to evict the tenant on the ground of subletting. On this question there was difference of opinion between two learned Judges of this Court and the matter was referred to a learned Third Judge. P. K. Banerjee J. (as his Lordship then was). On such reference the Judge has held agreeing. with N. C. Mukherjee J. that the landlord does not waive his right to get a decree Under Section 13(1)(a) of the West Bengal Premises Tenancy Act.
9. Mr. Bhabra has also contended that waiver is basically a question of fact. There has been no pleading by the defendant that the landlord had waived the right of evicting the tenant on the ground of subletting and such issue has also not been framed in the instant suit. He has submitted that waiver is intentional relinquishment of such right. There is no evidence to support the contention that the landlord had known all the facts about subletting and with intention to relinquish such right had done so. For this contention, Mr. Bhabra has referred to a decision of the Supreme Court made in the case of Associated Hotels India Ltd. v. S. P. Sardar Ranjit Singh reported in : 2SCR548 . Mr. Bhabra has also contended that it is an admitted case of the parties and it has also been proved that the defendant company had handed over exclusive possession of the disputed flat in favour of A. M. Khan for several months and had also received consideration for such parting of possession of the said flat. He has contended that if the landlord can establish that a tenant for a consideration had parted with possession of the tenancy in favour of another person, then in law, there will be presumption of subtenancy and if the tenant disputes such subtenancy, it is obligatory on the part of the tenant to lead sufficient evidence to rebut that presumption of the said contention, Mr. Bhabra has also relied on the decision of the Supreme Court made in the case of Associated Hotels of India Ltd. : 2SCR548 (supra). He has submitted that from exhibit No. I it appears that the possession had been handed over for three months commencing from June 15, 1974 at a monthly rent of Rs. 1250/-. Admittedly, thereafter, the said A. M. Khan was allowed to remain in possession till Jan. 1975. Admittedly, the defendant company had realised rents at Rs. 1250/- per month. He has submitted that the defendant company has failed to establish as to under what further arrangement Mr. Khan had continued in possession. Mr. Bhabra has, therefore, submitted that the learned Judge is justified in holding that in the absence of any evidence about the terms and conditions under which Mr. Khan had continued his possession of the disputed flat till Jan. 1975 it must be presumed that he had occupied the same as a subtenant.
10. Mr. Bhabra has also referred to a Bench decision of this Court made in the case of Shantilal Sarogi v. Mukund Lal Kothari reported in : AIR1980Cal381 where it has been held that when the possession of the tenanted premises is handed over by the tenant in favour of a third party, there will be presumption of subletting by the tenant in favour of the said third party and the defendant tenant is under obligation to rebuf such presumption.
11. Mr. Bhabra has also relied on another decision of this Court made in the case of Provabati Das v. R.R. Jonija reported in (1978) 1 Cal LJ 589 : (AIR 1979 NOC 13), in which a similar view has been taken. Mr. Bhabra has therefore submitted that in the facts and circumstances of the case, the learned Judge has correctly held that the defendant company had sublet the said premises without the previous consent of the landlord in writing and as such, the defendant company was liable to be evicted. He has, therefore, contended that no interference is called of in this appeal and the same should, therefore, be dismissed.
12. After considering the respective contentions of the parties, it appears to us that the defendant-company had handed over exclusive possession of the disputed flat in favour of Mr. A. M. Khan from June 1974 till Jan. 1975 and for s'uch occupation by the saidMr. Khan, the defendant company had alsoreceived considertion at the rate of Rs. 1250/-per month. It is true that mere reference ofrent by itself will not convert a licence into alease or a lease into a licence. But suchexpression as 'rent' has also some significanceon the question of determining as to the realnature of assignment It appears from the factsand circumstances of the case that exclusivepossession was handed over to Mr. A. M. Khaninitially for a few months and thereafter, Mr.Khan was allowed to continue such possessionfor some more months. Such exclusivepossession coupled with payment ofconsideration undoubtedly raised apresumption of sub-tenancy in favour of Mr.A. M. Khan. The defendant-companyexcepting making a bald statement that Mr.Khan was allowed to occupy the said flat as alicensee has failed to establish by any cogentevidence that the assignment in favour of Mr.A. M. Khan was really an assignment to alicensee and the defendant company hadretained control over the said flat even duringthe possession of Mr. Khan. It appears thatMr. Khan not only had exclusive possessionof the said flat but had made separatearrangement for payment of electricity chargesto the Shalimar Apartment ManagingCommittee for the consumption of electricityin the said flat.
13. In our view, in the facts and circumstances of the case, the defendant company had sublet the said premises in favour of Mr. A. M Khan and the defendant company has failed to rebut the presumption of sub tenancy by leading any reliable evidence.
14. So far as the contention of Mr. Banerjee that until the sub-tenancy subsists on the date when the notice determining the tenancy is given by the landlord, the landlord is not entitled to claim eviction on the ground of subletting is concerned, we are of the view that the said contention cannot be accepted. The Supreme Court in Gajanan's case : 1SCR535 has held in no uncertain term that once the fact of subletting is proved, the tenant's liability to eviction arises. Disability of the tenants to claim protection against eviction on the score of subletting continues once subletting is proved and it is not necessary that such subletting will also subsist when the notice for determining the tenancy is given.
We are also unable to accept the contention of Mr. Banerjee that the landlord had waived the right of evicting the tenant on the score of subletting when he had accepted the rent for the month of April 1975 knowing fully about such subletting in March 1975. So long the tenancy is not lawfully determined in accordance with the provisions of Section 13(6), the contractual tenancy subsists despite subletting by the tenant. In such circumstances, the landlord will be quite within his right to accept rent until the tenancy is determined and such acceptance of rent will not amount to waiver of right. We respectfully agree with the view taken by this Court in the case of Pulin Behari Pal reported in : AIR1981Cal61 .
15. It may also be noted in this connection that it is positive case of the plaintiff that after the receipt of the copy of the said letter written by tars about such subletting and in the instant case, the landlord is not accepting rent after April 1975.
16. In the aforesaid circumstances, no interference is called for in this appeal and the appeal is, therefore, dismissed with costs.
17. All interim orders passed during the pendency of the appeal stand vacated.
18. Mr. Banerjee has made an oral prayer for leave to appeal to the Supreme Court but in our view, this is not a fit case where such leave can be granted and as such, the said prayer is refused.
19. Mr. Banerjee has also prayed for stay of the operation of the order till one week after the Annual Vacation. In the facts and circumstances of the case, we are not inclined to grant such stay of operation of this order.
Shankaki Prasad Das Ghosh, J.