LexWAMAN SHRINIWAS KINI versus RATILAL BHAGWANDAS & CO.
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(2) S.C.R. SUPREME COURT REPORTS 217 W AMAN SHRINIW AS KINI v. RATILAL BHAGWANDAS & CO. (JAFER IMAM, S. K. DAS and J. L. KAPUR, JJ.) Landlord and Tenant-Ejectment-Agreement of lease allow- ing sub-letting-Sub-letting prohibited by statute-Landlord's suit for ejectment-Right of ejectment under statute-Equal participant in illegality-Plea of Waiver-Agreement to waive an illegality- Bombay Hotel and Lodging Houses Rates Control Act, r947 (Bom. 57 of r947), ss. r3(r)(e), r5-Jndian Contract Act, r872 (9 of r872), s. 23. The appellant was a tenant originally iri the old building but after it was purchased by the respondent he vacated it and became a tenant under the respondent in the new premises. In the old building the appellant had sub-tenants, who shifted to the new premises along with the appellant when the latter occupied those premises. One of the terms of the lease which were con- tained in a letter dated June 7, 1948, written by the respondent to the appellant provided: "In the shops in the old chaw] which are with you, you have kept sub-tenants. We are per- mitting you to keep sub-tenants in the same manner, in this place also." On April 20, 1949, the respondent brought a suit for ejectment against the appellant on the ground, inter alia, that s. 15 of the Bombay Hotel and Lodging Houses Rates Con- trol Act, 1947, prohibited_sub-letting and under s. 13(1)(e) of the Act the landlord has the right to evict -the tenant on account of sub-letting. The appellant's -defence was (1) that s. 15 of the Act was confined to" any other law", that it did not apply to contracts between the landlord and tenant and therefore.it did not preclude an agreement between the parties as to sub-letting, (2) that the parties were in pari delicto and therefore the respondent could not succeed, and (3) that the right of the respondent to sue for ejectment on the ground of sub-letting being a personal right for his benefit, he must be taken to have waived it as he had allowed the appellant to sub-let and, consequently, he could not evict him under s. 13(1)(e) of the Act. Held: (1) that the non-obstante clause "Notwithstanding anything contained in any Jaw" ins. 15 of the Bombay Hotel and Lodging Rates Control Act, 1947, applies to contracts also as they would fall under the provisions of the law relating to contracts; (2) that the respondent was entftled to sue for ejectment, though the agreement recognised sub-letting, as the suit was brought not for the enforcement of the agreement but to enforce the right of eviction which flowed directly from an infraction of the provisions of s. 15 of the Act and for which the Act itself 28 1959 February I6. 218 SUPREME COURT REPORTS [1959] Supp. z959 provided a remedy. The section is based upon public policy, and where public policy demands, even an equal participant in Waman an illegality is allowed relief by way of restitution or rescission, Shriniwas Kini though not on the contract; and, v.. (3) .that the plea of waiver which the appellant relied on Ratilal cannot be sustained because as a result of giving effect to that Bhagwandas & Co. plea the court would be enforcing an illegal agreement and thus contravene the statutory provisions of s. IS of the Act. An agreement to waive an illegality is void on grounds of public policy and would be unenforceable. Kapu1 ]. Case law reviewed. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 674 of 1957. Appeal by special leave from the judgment and decree dated August 10, 1955, of the Bombay High Court in C. R. Application No. 1213 of 1953, arising out of the judgment and decree dated April 25, 1953, of the Assistant Judge, Thana, in C. A. No. 97 of 1952, against the judgment and decree dated January 31, 1952, of the Court of the Civil Judge, J. D. Kalyan, in Suit No. 153of1949. PurBhottam TricumdaB, RameBhwar Nath and S. N. Andley, for the appellant. H.J. Umrigar, Ratnaparkhi Anant Govind and W. P. Oka, for the respondent. 1959. February 16. The Judgment of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the judgment of the High Court of Bombay confirming the order of ejectment passed by the Assis- tant Judge, Thana. The tenant who was the de- fendant in the suit is the appellant and the landlord who was the plaintiff is the respondent. The facts giving rise to this litigation shortly stated are that the appellant was a tenant for about 20 ye
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