PULIN BEHARI LAL Vs. MAHADEB DUTTA

JUDGEMENT

(1.) This is a tenants appeal by grant of Special Leave in a suit for eviction decreed against him by all the Courts.

(2.) The appellant took one road side shop room in the ground floor of premises No. 75, Surendra Nath Banerjee Road, Calcutta on rent @ Rs. 50/- per month. On 27th September, 1973 the respondents herein purchased the premises in question from the Commissioner of Partition and Receiver in High Court Suit No. 1183 of 1961 (Arup Kumar Dhar vs. Satya Narayan Dhar and Others, a suit for partition etc., between the owners of the said premises. The said Commissioner of Partition and Receiver notified the appellant about the said sale and asked him to attorn his tenancy and to pay rent to the respondents. The appellant as such started paying rent to the respondent purchasers till January, 1975. On 21st May, 1975 the respondent landlords sent a notice to quit on the ground of default in the payment of rent and subletting. The appellant sent a reply in writing on 6th June, 1975 denying the alleged default in payment of rent as well as subletting. The respondents filed a suit for ejectment on 12th December, 1975 in the City Civil Court at Calcutta (IIIrd Bench). The suit was based on the ground of default in the payment of rent and subletting. The trial court decided the question of default in the payment of rent in favour of the appellant but decided the question of subletting against him and as such decreed the suit by Judgment dated 12th June, 1979. The appellant aggrieved against the aforesaid Judgment filed an appeal before the High Court.

(3.) A Division Bench of the High Court consisting of N. C. Mukherji and Surendra Mohan Guha, JJ. heard the appeal. Guha, J. held that the plaintiffs had knowledge of assignment or subletting in favour of Sujoy Kumar Dass Gupta much earlier than the last payment of rent in January, 1975. In this view of the matter Guha, J. held that the rent having been accepted after the knowledge of subletting long before the determination of tenancy, the natural inference from this conduct would be that the plaintiffs had waived or dispensed with their right of forfeiture. Guha, J. as such accepted the appeal and directed the dismissal of the plaintiffs suit. N. C. Mukherji, J. disagreed with the aforesaid view of Guha, J. and according to him the tenants liability to eviction arose under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) once the fact of subletting was proved. According to Mukherji, J. a tenant under the Act 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 landord. In view of the difference of opinion between the two learned Judges the matter was referred to a third learned Judge. Mr. P. K. Banerjee J., the third learned Judge by his order dated 23rd June, 1980 agreed with the view of N. C. Mukherji, J. The majority view being in favour of the respondent landlords, the appeal was ultimately dismissed by the High Court by order dated 25th July 1980 : (reported in AIR 1981 Cal 61). Aggrieved against the judgment of the High Court, the tenant has come in appeal to this Court. We have heard learned counsel for the parties and have gone through the record. The trial Court as well as all the learned Judges including Guha, J. in the High Court have recorded a finding of fact that there was no previous consent in writing by the landlord for the sub-tenancy created by the tenant appellant. This finding of fact is binding on the appellant and cannot be assailed before this Court. The only question on which Guha, J. held in favour of the tenant appellant was that the rent having been accepted after the knowledge of subletting, the natural inference from this conduct would be that the landlords had waived the right of claiming eviction against the tenant. In our view in the facts and circumstances of the present case the aforesaid view taken by Guha, J. is not correct. A perusal of the provisions of Sections 13 and 16 of the Act make the position clear. The relevant portions of the aforesaid provisions are reproduced as under :- Section 13 - Protection of tenant against eviction - (I) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely : -