Lancelot Sanderson, C.J.
1. This is an appeal from two judgments, the first of which was delivered by my learned brother Mr. Justice Buckland on the 22nd of February 1924, and the second of which was delivered by my learned brother Mr. Justice C. C. Ghose on the 20th of May 1924.
2. The suit was brought by the plaintiff, the Official Trustee of Bengal, as Trustee of the Estate of Anna Apcar, on the 5th of December 1923 : and, it was alleged that the defendant had been the lessee under a lease, dated the 20th of November 1919 for a period of four years, the term of which expired on the 30th day of September 1923.
3. There was a further allegation that on ' the 13th of August 1923, the plaintiff gave notice to the defendant to quit and vacate the premises on the expiry of the lease, as the premises were required for the use and occupation of one Johannes Apcar, the present sole beneficiary under the trust.
4. The plaint alleged that the defendant failed to give possession of the premises and, it then contained a definite statement that 'the premises were bona fide required for the use and occupation of the said beneficiary Johannes Apcar.'
5. It is, therefore, clear that when this plaint was filed, the plaintiff had the provisions of the Calcutta Rent Act in mind, and he was asserting in effect that the Calcutta Rent Act would not protect the defendant from an order of ejectment by reason of the fact that the premises were bona fide required for the use and occupation of Mr. Apcar. It is material to notice this and because of what occurred at the trial. The suit was heard on the 21st and the 22nd of February. On the second day, namely, the 22nd, it appears from the judgment of my learned brother Mr. Justice Bucklanu that the learned Counsel for the plaintiff then stated for the first time that he relied not only on the allegation that the premises were required for the use and occupation of Mr. Apcar but also upon the latter words of Section 11, Sub-section (1) of the Calcutta Rent Act.
6. The learned Judge came to the conclusion that it was not proved that the premises were bona fide required by Mr. Apcar for his own occupation, and, I need not say more than that I agree with the learned Judge's finding upon that question of fact.
7. The learned Judge then allowed the other point, which had been raised by the learned Counsel for the plaintiff, to be investigated : and, he gave directions that the necessary pleadings should be filed by the one side and by the other: and, he adjourned the hearing of the suit for a month.
8. The suit then came before my learned brother Mr. Justice C. C. Ghose.
9. The allegations upon which the plaintiff relied on that occasion were these: He relied first of all upon a covenant in the lease which is as follows: 'The lessee doth hereby covenant with the lessor not to assign, sublet or part with possession of the said premises or any part thereof without the previous consent in writing of the lessor, but such consent shall not be unreasonably with held in the case of a responsible and respectable person other than a boarding house keeper or tenants other than Europeans:' and, it was alleged on behalf of the plaintiff that the defendant without the knowledge or consent of the plaintiff and without application made for the consent of the plaintiff, sublet and gave possession of the upper floor of the premises, during the subsistence of the lease, to one Mr. Stevenson at a monthly rent of Rs. 225 and that the defendant also without such knowledge or consent and without such application made, and during the subsistence of the said lease, sublet and parted with possession of and was now subletting certain of the godowns, forming part of the said premises to other persons as monthly tenants, and that such persons were now in possession thereof.
10. The learned Judge came to the conclusion that there had been a breach of the covenant in question : and he stated that, in his opinion, the question was whether or not there had been a waiver of the breach of that covenant. He then concluded as follows: 'In my opinion, therefore, there was waiver of forfeiture of the lease, and accordingly the plaintiff's suit for ejectment must fail and be dismissed.'
11. With much respect to the learned Judge, it seems to me that the conclusion at which the learned Judge arrived was not framed in the correct manner. Waiver of the breach of the covenant and waiver of the forfeiture are not the same things. In my judgment there was no forfeiture, because even though there may have been a breach of covenant the lessor had not done any act which showed his intention to determine the lease, as provided by Section 111...(g) of the Transfer of Property Act, 1882, and the learned Counsel who appeared for the appellant agreed that in this case there was no forfeiture. But I understand that the learned Judge meant to come to the conclusion that the plaintiff had in fact waived the breach of the covenant and that consequently the plaintiff was not entitled to succeed.
12. With regard to the two allegations upon which reliance was placed and as to which there is really no question of fact before us, it appears to me that the alleged subletting of the godowns is of no avail to the plaintiff in this case, because as I understand the case, the position seems to be that the godowns were sublet before the lease was executed and that the ground floor, in the time of the defendant's predecessor, as well as in the time of the defendant, had been used as an office for the purpose of conducting the business of the Melitus Estate and that those facts must have been known to every one concerned.
13. The other matter relating to the subletting of the upper floor to Mr. Stevenson is in a different position : Mr. Stevenson went into possession in April 1921, and remained there until April 1923: and, the learned Judge has found as a fact that the plaintiff, the Official Trustee, knew either in July or in August 1923 that there had been a subletting to Mr. Stevenson. That finding of fact of the learned Judge has not been contested in this Court.
14. The question, therefore, remains whether the subletting to Mr. Stevenson in April 1921 is sufficient to prevent the defendant from relying upon the provisions of the Calcutta Rent Act.
15. Section 11(1) provides as follows: 'Notwithstanding anything contained in the Transfer of Property Act, 1882, the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made so long as the tenant pays rent to the full extent allowable by this Act, and performs the conditions of the tenancy....' In my judgment there was no doubt a technical breach of the covenant committed by the defendant in April 1921 when he sublet the upper floor of the premises to Mr. Stevenson : and, the technical breach consisted in that he failed to apply for the plaintiff's consent in writing to that subletting. There is nothing to suggest that if he had applied he would not have got the consent of the lessor or if the consent had been refused it is possible that the defendant might have let it to Mr. Stevenson without such consent on the ground that he was a responsible and respectable tenant. That is the technical breach and the only breach upon which, in my judgment, the plaintiff could rely in this case. I have no doubt that that technical breach was waived by the Official Trustee when he heard about it in July or August 1921 It is clear that he received the rent for August and September 1923 after he had obtained that knowledge. He never made the smallest complaint about the upper floor being sublet to Mr. Stevenson in April 1921; and he did not take any steps to terminate the tenancy on the ground of the breach of the covenant to which I have referred. I have no doubt that there was a complete waiver by the plaintiff of the technical breach of the covenant.
16. In these circumstances, in my judgment, it cannot be said that the defendant failed to perform the conditions of the tenancy within the meaning of Section 11 (1) of the Calcutta Rent Act.
17. For these reasons, in my judgment, the conclusion at which the learned Judge arrived was correct and this appeal must be dismissed with costs.
18. I agree. With reference to the words in the first Sub-section of Section 11 of the Calcutta Rent Act, there are some things that those words must import, some things which they may import and there are some things which they cannot import. I do not think that they can possibly mean that because a breach of covenant was committed in 1921 which was perfectly harmless, which never was made a grievance of, and as to which no request for compensation or damage was ever made, therefore, it is impossible for the Court to give the tenant in 1924 the benefit of the Rent Act. Whether the phrase 'and performs the conditions of the tenancy' must be read as applying only to the time during which the tenant's right to possession depends entirely upon the Calcutta Rent Act, has been argued before us. If that position be correct it still remains that by the last words of the proviso to Sub-section (1) the Court could in a proper case take into account breaches of the conditions of the tenancy committed during the course of the original tenancy. But it is not necessary for the purposes of this case to determine any nice question of construction.
18. The position is that, so far as it appears, no objection could have been taken to Mr. Stevenson. Had permission been asked and refused it would presumably have been open to the tenant to ignore the covenant altogether. Mr. Stevenson appears to have been in occupation of a part of the premises for two years. He left in April 1923. Whether the Official Trustee at that time knew anything about his occupation, it seems almost certain that the beneficiary Mr. Apcar to whose instructions the Official Trustee paid great attention, must have known about this fact so far from making any grievance of the matter, when it was discussed between the Official Trustee and his beneficiary in July 1923 the correspondence shows that there was no objection at all being taken about this question of subletting. The letter of the 2nd of August is not the letter of the man who says 'you have been guilty of this breach; I do not think it necessary to forfeit, but at the end of your time you will have to go.' His point is that, 'The end of your lease is coming. I desire to charge you more rent; and one of the things which makes it reasonable for me to charge you more rent is the amount of rent you have been realising from your sub-tenants to say nothing of the rent that I presume is paid for the use of the. office.' Suppose for the sake of argument that in 1921 this matter had come to the notice of the Official Trustee and the tenant had said, 'I am very sorry. I should have asked for your permission before I sublet,' and the lessor had said, 'Never mind, it is all right,' or suppose the landlord said, 'I will not forfeit but I shall charge you as damages one rupee' and that the tenant had paid. It is absurd, in these circumstances, to suppose that, because there was a technical breach in 1921, that it could have been utilized against the tenant at the end of 1923 or the beginning of 1924. The facts in this case are certainly not so strong but they come, in my opinion, to the same result: they show, in point of fact, a knowledge of the whole transaction after the event without any complaint being entertained in the mind of the landlord in respect of this matter. Had such a complaint been made, anything that could have been asked as compensation might have been paid by the tenant. In my judgment it would be putting an unreasonable construction upon Section 11 in this case, if we were to hold that the tenant after 1921 was entirely deprived of any benefit of the Calcutta Rent Act. I entirely agree that the mere question of waiver of the right of re-entry is in no way conclusive in this case.
19. It seems to me that the learned Judge's decision was right in the result, and I agree that the appeal should be dismissed.