PULIN BEHARI LAL versus MAHADEB DUTTE AND ORS.

Citation: [1993] 1 S.C.R. 472 · Decided: 03-02-1993 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
PULIN BEHAR! LAL 
v. 
MAHADEB DUITE AND ORS. 
FEBRUARY 3, 1993 
[KULDIP SINGH AND N.M. KASLIWAL, JJ.] 
West Bengal Premises Tenancy Act, 1956-Sections 13 and 16-Evic-
tion on the ground of sub-letting-Previous consent in writing of the landlord 
for creation of sub-tendancy-Necessary. 
C 
House ,Rent-Eviction on the ground of default in payment of rent and 
, D 
sub'/~tting- Question of waiver- Whether acceptance of rent after having 
knowledge of sub-letting amounts to waiving. 
The appellant was the tenant with respect to shop room on a 
monthly nmt or Rs. 50. On 27th September, 1973, the respondent pur-
chased the premises in question from the Commissioner or Partition and 
Receiver in a suit for partition between the owners or the said premises. 
The appellant tenant was notified about the sale and was asked to pay rent 
to the respondents. 
E 
The respondents tiled a suit for ejectment on 12th December, 1975 
in the City Civil Court on the ground or derault in payment or rent and 
sub-letting. The Trial Court decreed the suit on the ground or sub-letting. 
The appellant filed an appeal before the High Court against the judgement 
or the Trial Court. 
F 
The Judges of the Division Brnch of the High Court took divergent 
views. While one Judge held that the plain ti IT having accepted the rent even 
after having the knowledge of subletting plaintiff had waived or dispensed 
with their right of rorfeiture and as such directed the dismissal of the 
plaintlfl's suit, the other Judge took a contrary view that under the West 
G Bengal Premises Tenancy Act, 1956, a tenant was under an obligation to 
pay rent to the landlord and there was no question of waiving the right of 
forfeiture by accepting the rent by the landlord. 
In view the difference or opinion between the two judges, the matter 
was referred to a third Learned Judge, wbo agreed with the latter view. 
H Thus the appeal preferred by the tenant was dismissed, against which the 
472 
• 
PULIN BEHARI v. MAHADEB DUTfE 
present appeal by special leave was filed. 
Dismissing the appeal, this Court, 
473 
A 
HELD : 1.01. A perusal of the provisions of Section 13 and _16 of 
the Act clearly shows that when there was no previous consent in writing 
of the landlord for creation of sub-tenancy it shall be a ground for eviction B 
in terms of Section 13(1)(a) of the Act. Even in case of creation of 
~ 
sub-tenancy with the consent of the landlord in writing it was necessary 
to follow the future procedure prescribed under section 16(1) of the Act. 
Mere knowledge or acknowledgement of rent cannot defeat the landlord's 
right to get a decree for ejectment on the ground of sub-letting. Ir the view C 
as contended on behalf of the applicant is accepted the provisions of both 
the sections 13 and 16 would become nugatory. [476E-F] 
1.02. There is a clear mandate in Section 13(1)(a) that the protec· 
tion against eviction to the tenant shall not be available in case the tenant D 
transfers, assigns or sub-lets in whole or in part the premises held by him 
without the previous consent in writing of the landlord. [ 476F] 
1.03. Waiver is a question of fact which depends on the facts and 
circumstances of each case. lo case of waiver of any provisions of the E 
Statute it is necessary to prove that there was conscious relinquishment 
of the statutes. [ 4780] 
1.04. In the instant case there is no question of waiver. It was 
necessary for the tenant appellant to prove that the landlord had accepted 
the rent being fully conscious that by their act they were relinquishing the F 
right of eviction available to them on the ground of sub'lettiog under 
)>-
Section 13(1)(a) of the Act. [478El 
1.05. Any acceptance of rent from the appellant in January, 1975 
cannot amount to any waiver in respect of rent from the appellant in G 
January, 1975 cannot amount to any waiver in respect of the right of 
eviction on the ground of sub-letting. [479D] 
Mis Shalimar Tar Products Ltd. v. H.C. Shanna & Ors., [1988] 1 SCC 
70, relied on. 
H 
474 
SUPREME COURT REPORTS 
(1993) 1 S.C.R. 
A 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2629 of 
B 
c 
1980. 
From the Judgment and Order dated 17.3.80/25.7.80 of the Calcutta 
High Court in Original Decree No. 10 of 1980 .. 
Dr. Shankar Ghosh, Somnath Mukherjee and P.K. Mukherjee for the 
Appellant. 
Rathin Das for the Respondents. 
The Judgment of the Court was delivered by 
KASLIWAL, J. This is a tenant's appeal by grant of Special Leave 
in a
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