Back
SUPREME COURT OF INDIA
16th February, 1959
J. IMAM, S.K. DAS AND J.L. KAPUR JJ.
Waman Shriniwas Kini, Appellant
Versus
Ratilal Bhagwandas and Co., Respondent.
Civil Appeal No. 647 of 1957.
Advocates appeared
Mr. Purshottam Tricumdas, Senior Advocate, (M/s. Rameshwar Nath and S. N. Andley, Advocates of M/s. Rajinder Narain and Co. with him), for Appellant; M/s. H. J. Umrigar, Ratnaparkhi Anant Govind and W. P. Oka, Advocates, for Respondents.
LANDLORD AND TENANT - Bombay Hotel and Lodging House Rates Control Act, 1947 (Bom 57 of 1947) - Ss. 13(1)(e), 15 - Sub-letting - Prohibition - Agreement between landlord and tenant permitting sub-letting - Validity - Waiver of right to evict on ground of sub-letting - Public policy.
Fact of the Case:
The appellant was a tenant in a building known as "Fida Ali Villa" for about 20 years. The respondent purchased the building and gave notice to the appellant to vacate as he wanted to construct a new building on the site. The appellant agreed to vacate and the respondent let to him a portion of his new building which was not far from "Fida Ali Villa". The appellant had four sub-tenants, three of them also shifted to the new premises which were let to the appellant by the respondent. The 4th, a Bohri, was fixed of by the respondent in some other place. There was some dispute as to the date when these new premises were let to the appellant, the appellant alleging that they were let on July 1, 1948 and the respondent that they were let on June 1, 1948. The trial Court found that they were let on June 1, 1948. The terms of the lease are contained in a document dated June 7, 1948 which is a letter in Marathi written by the respondent to the appellant and contains the following term as to sub-tenancy: "In the shops in the old chawl which are with you have kept sub-tenants. We are permitting you to keep sub-tenants in the same manner, in this place also."
Finding of the Court:
The courts below held that the tenancy by the letter of June 7, 1948 was a new tenancy and not a continuation of the old and that the sub-tenants were tenants of the appellant and not licensees of the respondent and in this Court no serious argument was addressed on these points. The previous tenancy was of a different building called "Fida Ali Villa" which came to an end when the appellant vacated those premises and entered into a new agreement of lease in regard to the premises in dispute. There was no privity between the respondent and the sub-tenants of the appellant and they could not be termed his licensees. These contentions are without substance and have rightly been rejected.
Issues: 1. Whether the agreement between the landlord and tenant permitting sub-letting is valid? 2. Whether the landlord can waive his right to evict the tenant on the ground of sub-letting?
Ratio Decidendi: 1. Section 15 of the Bombay Hotel and Lodging House Rates Control Act, 1947 (Bom 57 of 1947) prohibits sub-letting and makes it unlawful for a tenant to assign or to transfer his interest in the premises let to him. The non-obstante clause of the section means that even if any other law allowed sub-letting, e.g., S. 108 of the Transfer of Property Act, the sub-letting would, because of S. 15, be unlawful. This would apply to contracts also as all contracts would fall under the provisions of the law relating to contracts i.e. Contract Act. An agreement contrary to the provisions of that section (S. 15) would be unenforceable as being in contravention of the express provision of the Act which prohibits it. It is not permissible to any person to rely upon a contract the making of which the law prohibits. (S. 23 of the Contract Act.) 2. The plea of waiver was taken for the first time in this Court in arguments. Waiver is not a pure question of law but it is a mixed question of law and fact. This plea was neither raised nor considered the courts below and therefore ought not to be allowed to be taken at this stage of the proceedings. But it was argued on behalf of the appellant that according to the law of India the duty of a pleader is to set up the facts upon which he relied and not any legal inference to be drawn from them and as he had set up all the circumstances from: which the plea of waiver could be inferred he should be allowed to rise and argue it at this stage even though it had not been raised at any previous stage not even in the statement of case filed in this Court and he relied upon Gouri Dutt Ganesh Lal Firm v. Madho Prasad, AIR 1943 PC 147. Assuming that to be so and proceeding on the facts found in this case the plea of waiver cannot be raised because as a result of giving effect to that plea the Court would be enforcing an illegal agreement and thus contravene the statutory provisions of S. 15 based on public policy and produce the very result which the statute prohibits and makes illegal.
Final Decision: Appeal dismissed.
Judgment
J. L. 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 Assistant Judge, Thana. The tenant who was the defendant in the suit is the appellant and the landlord who was the plaintiff is the respondent.
2. The facts giving rise to this litigation shortly stated are that the appellant was a tenant for about 20 years in the premises known as "Fida Ali Villa" in Kalyan. This building was purchased by the respondent who gave notice to the appellant to vacate, as he wanted to construct a new building on the site of the old building. The appellant agreed to vacate and the respondent let to him a portion of his new building which was not far from "Fida Ali Villa". The appellant had four sub-tenants, three of them also shifted to the new premises which were let to the appellant by the respondent. Although it was disputed, the courts below have found that they occupied the same position qua the appellant. The 4th, a Bohri, was fixed of by the respondent in some other place. There was some dispute as to the date when these new premises were let to the appellant, the appellant alleging that they were let on July 1, 1948 and the respondent that they were let on June 1, 1948. The trial Court found that they were let on June 1, 1948. The terms of the lease are contained in a document dated June 7, 1948 which is a letter in Marathi written by the respondent to the appellant and contains the following term as to sub-tenancy:
"In the shops in the old chawl which are with you have kept sub-tenants. We are permitting you to keep sub-tenants in the same manner, in this place also."
The parties were not agreed as to the correctness of the translation of this term. The submission of the appellant was that the word sub-tenant should be in the plural and of the respondent that it should be in the singular but whether it is in the singular or plural it does not make any difference to the principal argument advanced in this Court. On January 3, 1949 the respondent gave notice to the defendant to vacate the premises on the ground of non-payment of rent and sub-letting which it was alleged had resulted in the termination of the tenancy.
3. On April 20, 1949 the respondent brought a suit for ejectment on the ground of non-payment of rent and sub-letting of the premises. The defence of the appellant was that under the terms of the lease he had the right to sub-let the premises. As to the claim on the ground of non-payment of rent he deposited the arrears of rent in court. The trial Court held that sub-letting was lawful in spite of S. 15 of Bombay Hotel and Lodging House Rates Control Act, 1947 (Bom 57 of 1947). He also held that the appellant did not occupy the premises on the same terms and conditions on which he occupied the old premises in "Fida Ali Villa". He passed a decree for Rs. 445 on account of rent remaining due and dismissed the respondent s suit for ejectment. On appeal the Assistant Judge at Thana reversed the decree holding that S. 15 of the Act completely prohibited sub-letting and under S. 13(1)(e) of the Act the landlord had the right to evict the tenant on account of sub-letting. The appellant then went in revision to the High Court of Bombay, but it affirmed the order of ejetment. The appellant has come to this Court by special leave.
4. Counsel for the appellant urged that there was no new tenancy after the coming into force of the Act and therefore Ss. 13(1)(e) and 15 of the Act did not apply; (2) that the tenant had not sub-let the premises to the sub-tenants and they were merely licensees of the landlord; (3) that no new sub-tenancy had been created; (4) that S. 15 was confined to any other law ; 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; (5) that the parties were in pari delicto and therefore the plaintiff-respondent could not succee
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
